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3-1-2006
Internationalizing the Statecraft: Genocide,
Religious Revivalism, and the Cultural Politics of
International Criminal Law
Kamari Maxine Clarke
Recommended Citation
Kamari Maxine Clarke, Internationalizing the Statecraft: Genocide, Religious Revivalism, and the Cultural Politics of International Criminal
Law, 28 Loy. L.A. Int'l & Comp. L. Rev. 279 (2006).
Available at: http://digitalcommons.lmu.edu/ilr/vol28/iss2/3
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Internationalizing the Statecraft:
Genocide, Religious Revivalism, and the
Cultural Politics of
International Criminal Law
KAMARI MAXINE CLARKE*
I. INTRODUCTION
The citizens of Nigeria's worst nightmare rang true in
November 2003 as the controversial Miss World competition to be
held in Abuja, Nigeria, plunged the country into fatal clashes
between Christians and Muslims.1 In the midst of already
heightened tensions between Christians and Muslims around the
revival of the strict Islamic Shari'a penal code in Nigeria,2 an
*Many colleagues provided valuable intellectual feedback throughout the revisions of this
paper and I am grateful for their engagement. Special thanks to Marjan Damaska, James
Whitman, Oona Hathaway, Amy Chua, Jack Balkin, Sandy Levinston, and the Islamic
Reading Group at Yale Law School. Thanks also to my colleagues in institutions where I
have presented earlier drafts: The Departments of Anthropology at the University of
California-Berkeley, University of California-Irvine, Southern Connecticut State
University, the University of South Carolina-Columbia, University of Colorado-Boulder,
Columbia, The International Center for Ethnic Justice and Public Life at Brandeis
University, The Human Rights Center at the University of Connecticut, Storrs, Osgoode
Hall Law School at York University, The University of Sussex Faculty of Law, the Emory
University's Center for Humanistic Inquiry, and colleagues at the Boalt School of Law at
UC Berkeley. Special thanks for their critical engagement to Hauwa Ibrahim, Laura
Nader, Annie Bunting, Susan Drummond, Jane Cowan, Richard Wilson, Sally Merry,
Marie Benedicte-Dembour, Bill Maurer, Bill Hanks, Mark Whitaker, Ann Kingsolver,
Mihri Cakir-Inal, Donald Moore, Lawrence Cohen, Aihwa Ong, Nancy Scheper Hughes,
and Jim Ferguson.
1. These sectarian clashes represented the protestors' disagreement with the
pageant. They argued that the principles of female nudity required of contestants were not
only vulgar and indecent, but also insulting to Islamic precepts of modesty. The initial
violence represented both a reaction to that irreverence and a defense of the Prophet.
Interviews by Kamari Maxine Clarke, in Abuja, Nigeria (Dec. 2002).
2. Jessi Herman, A Divided Nigeria,Institute for Global Engagement, Nov. 30, 2001,
at paras. 2-3, http://www.globalengagement.org/issues/2001/1l/nigeria.htm.
279
280
Loy. L.A. Int'l & Comp. L Rev.
[Vol. 28:279
article by journalist Isioma Daniel, printed in This Day newspaper,
instigated rioting when Ms. Daniel responded to Muslim
complaints that the pageant promoted sexual promiscuity and
indecency by suggesting that the sacred Muslim leader, were he
alive, would have appreciated the pageant.' "What would [the
Prophet] Mohammad think?" Ms. Daniel asked. "In all honesty,
he would probably have chosen a wife from one of [the
contestants]."
The social unrest began after an Imam in the Abuja-based
National Mosque recounted the nature of the reporter's attack on
the Prophet Muhammad and issued a fatwa that called on Muslim
worshippers to uphold their moral and legal duty to protect the
name of the Prophet against those who offend him.' This fatwa (an
authoritative legal opinion given by a legal scholar known as a
mufti) represented a call to jihad (to strive, to struggle)-that is, a
political or military struggle to further the Islamic cause.6 In an age
of increasing democratization propelled by the spread of the Rule
of Law (ROL) and international tribunals, such as the
International Criminal Court (ICC), this call on Muslims to defend
their Prophet is not unusual since it represents the will of the
Islamic faithful to defend themselves from what was seen as not
only disrespectful journalists, but also attacks on their religious
practices by officers of the secular state. For according to the
popular definition of a Muslim, she or he is represented as one
who accepts and believes that Muhammad is the messenger of
God, and Allah's commandments led to the development of the
general philosophy for inner peace found in The Qur'an, the Holy
Book of Islam.7 In detailing the path to inner peace, the Qur'an
outlines the duties and obligations of the faithful, including the
moral obligation to act in defense of the prophet, wherein it
3. Muslims Condemn Nigerian fatwa', BBC NEWS, Nov. 29, 2002, at paras. 4-6,
http://news.bbc.co.uk/2/hi/africa/2525573.stm;
Writer's Anger over Miss World Deaths,
BBC NEWS, Jan. 18, 2003, at para. 8., http://news.bbc.co.uk/2/hi/africa/2671229.stm.
4. Writer's Anger over Miss World Deaths, supra note 3, at para. 10.
5. Muslim's Condemn Nigerian 'fatwa',supra note 3, at para. 6; Writer's Anger over
Miss World Deaths, supra note 3, at para. 7.
6. THE OXFORD DIcrIONARY OF ISLAM 159 (John L. Esposito ed., Oxford Univ.
Press 2003) (hereinafter OXFORD DICrIONARY OF ISLAM).
7. See THE HOLY QUR'AN 665-66 (Maulana Muhammad Ali ed., Specialty
Promoters Co., Inc. 1985) (1917) (hereinafter QUR'AN). This text came to be the Holy
Book of Islam - the source of God's commandments made real in Islamic doctrine - and
the principles of Islam were recorded in the Qur'an. Id. at intro. Xxv; see also THE
OXFORD DICTIONARY OF ISLAM, supra note 6, at 256-57.
2006]
Internationalizingthe Statecraft
prescribes violence in defense of faith and God. It teaches that
those who join the struggle are more likely to gain redemption.' In
this respect, it is believed by large numbers of Muslims that on the
last day, the "Day of Judgment," Allah will resurrect each person
and judge them based on their acts on the earth, thereby
determining whether they will be admitted to eternal Paradise or
condemned to hell.9
Qualifying for eternal life involves many duties and
obligations. One such duty is a response to the ritualistic call to
defend the Prophet and Islamic faith. Accordingly, the violence
that ensued after Isioma Daniel's ridicule of the Prophet
Muhammad was seen by various members of the faithful as
enactments in the exercise of their duty to defend their faith." As a
consequence, hundreds of Northern Muslims armed themselves
after Friday prayers at the Mosque and engaged in violent action
in Abuja, where contestants awaited the commencement of the
December 7, 2003, pageant." The violence spread to various
northern Nigerian cities, particularly Kaduna, 2 one of Nigeria's
most politically volatile cities located some two hundred miles
north of Abuja. Said one Kaduna-based Christian witness, "At
around five o'clock Muslim youths came to our homes carrying
machetes and chanting 'retribution, retribution.' They came in the
morning with weapons and began attacking us.' ' 13 Other witnesses
reported images of unsanctioned destruction in which people ran
through the streets and set everything in their paths ablaze. 4
"People were fleeing in all directions throughout the countryside.
8. QUR'AN, supra note 7, at 665-66.
9. Bernard Lewis, The Faith and the Faithful,in THE WORLD OF ISLAM 25 (Bernard
Lewis ed., 1992).
10. Research by Kamari Maxine Clarke, in Abuja, Nigeria (Dec. 2002) (on file with
author).
11. Consequently, the pageant organizers had to make new venue arrangements.
They moved the pageant to London, England and, as a result, contracts were broken and
millions of investment dollars were lost to violent protests. See Muslim's Condemn
Nigerian 'fatwa', supra note 3, at para. 5. However, these protests were connected to long
histories of strife between Christians and Muslims in the Nigerian North and ongoing
political instability in the region. See Africa's Press Reflect on Miss World Riots, BBC
NEWS, Nov. 29, 2002, at para. 10, http://news.bbc.co.uk/2/hi/africa/2527339.stm.
12. Writer's Anger over Miss World Deaths, supra note 3, at para. 10. Kaduna is a city
with a predominantly Muslim majority of over two million residents. See Herman, supra
note 2, at para. 4.
13. Interviews data in Abuja, Nigeria (Dec. 2002).
14. Interview data in Abuja, Nigeria (Dec. 2002).
Loy. L.A. Int'l & Comp. L Rev.
[Vol. 28:279
The running here and there was confusing and scary.""
In the end, statistics on fatalities and injuries released by the
Federal Police reported two hundred dead and over five hundred
Christians and Muslims seriously injured. 6 With up to four
hundred recognized ethno-linguistic groups and three dominant
groups-an estimated twenty-nine percent of Hausa and Fulani in
the north, twenty-one percent of Yoruba in the Southwest, and
eighteen percent of Igbo in the Southeast' 7-the region continues
to be engulfed in struggles over competing groups vying for
political power. The interpretation of the moral and legal
obligations of citizens varies dramatically from one part of the
national state to another. And at the heart of the contemporary
contests have been challenges over the basis for legitimate
Nigerian governance, including the constitutionality of the newly
implemented Islamic Shari'a penal code."8 Among the conflicts are
questions concerning the right to an Islamic rebellion. The
problem, however, is that an internal armed conflict, such as an
15. Interviews data in Abuja, Nigeria (Dec. 2002). And surely as people were fleeing,
others were also capitalizing on the opportunity to vandalize stores and market stalls,
engaging in the theft of valuable goods. Interviews by Kamari Maxine Clarke, in Abuja,
Nigeria (Dec. 2002).
16. See Nigeria: Over 200 Killed in 'Miss World' Pageant Riots, FACTS ON FILE
WORLD NEWS DIGEST, Nov. 21, 2002; Miss World Abandons Nigeria, MAIL &
GUARDIAN,
Jan.
1,
2002
[sic], http://www.mg.co.za/articledirect.aspx?area=
mg__flat&articleid=12535; Bureau of Democracy, Human Rights and Labor, International
Religious
Freedom
Report
2003
(Nigeria),
http://www.state.gov/g/drl/rls/irf/
2003/23745.htm.
17. Though there continues to be disputes over the actual population breakdown, the
above figures represent the figures documented by the Nigeria Population Statistics. See
Nigerian Population Statistics; Nation by Nation, http://www.nationbynation.com.
18. DANJUMA BYANG, SHARI'A IN NIGERIA: A CHRISTIAN PERSPECTIVE 4-7
(Challenge Publications 1988); Vincent 0. Nmehielle, Shari'a Law in the Northern States
of Nigeria: To Implement or Not to Implement, the Constitutionality is the Question, 26
HUM RTS. 0. 730, 731 (2004). Shari'a is an Arabic word that means "the way to the
watering place." DANJUMA BYANG, SHARI'A IN NIGERIA: A CHRISTIAN PERSPECTIVE
36 (Challenge Publications 1988). It highlights "the way" - that is, the path or road that
every Muslim has to follow in order to earn the pleasures of life and to avoid the wrath of
wrong-doing. BYANG, supra, at 36. Also referred to as Islamic law, its formal structure is
embedded in the complex of divinely revealed rules to which the Muslim faithful are
expected to submit. Unlike the popular technical definition of Western law which
highlights written and unwritten rules that are enforced by coercive powers of the state, its
validity is located in the manifest will of Allah (God), and its principles represent a
broader sphere which encompasses outward conduct, moral value, and cultural principles.
BYANG, supra, at 36; Nmehielle, supra, at 737-38; ABDULLAHI AHMED AN-NA'IM,
TOWARD
AN
ISLAMIC
REFORMATION:
CIVIL
LIBERTIES,
INTERNATIONAL LAW 11 (Syracuse Univ. Press, 1990).
HUMAN
RIGHTS,
AND
2006]
Internationalizingthe Statecraft
Islamic movement in Nigeria that calls on believers to exercise
their duty and obligation to defend their leader, may qualify as a
defense strategy for some, whereas in other jurisdictions with
different religious and ethnic populations, it may be seen as
civilian terror motivated by religious irrationality. And yet, in
accordance with various domestic or international criminal
institutions - such'as that of the International Criminal Courtsuch an act might be classified as a criminal act that would qualify
for a criminal investigation, punishable by life in prison. These
differences in what constitutes crime are at the heart of some of
the contemporary challenges of international human rights.
Recent studies of religion and democratization, as they relate to
globalization, have tended to either be comparative or have been
organized around such areas as culture, politics, social
organization, law, or economy. Similarly, discussions of the
international domains of legal authority have emphasized the ways
in which expanded global institutions have facilitated the
formation of transnational networks of activists, north-south
nongovernmental organizational partnerships, and trans-border
linkages of a broad spectrum of social movements.
Over the last decade of the twentieth century, movements
toward the democratization of various African states have led to
the collapse of Cold War alliances, minority-led political groups, as
well as the subversion of religion in public life. 9 Rule of Law
(ROL) and civil and human rights have become the popular global
refrain among a wide spectrum of urban and rural activists.' This
twentieth century wave of individual rights has its discursive roots
in North American civil rights struggles over gender/sex and race
equality struggles of the 1960s. During the height of the Cold War,
demands for civil and political rights emerged with persistent
rallies for justice, freedom, and equality that ultimately led to
19. 11th General Assembly of the Council for the Development of Social Science
Research in Africa, Draft Paper: The African State: Issues and Challenges for Building a
Development State 9, (Dec. 6-10, 2005) (prepared by Kehinde Olayode),
("The
http://www.codesria.org/Links/conferences/general-assemblyll/papers/olayode.pdf
end of the Cold War entailed the rapid collapse of external supports for many
authoritarian regimes, thereby greatly weakening them, and making them vulnerable to
attacks from 'popular forces'.
. .
. Since alliances with developing nations could longer be
based on Cold War ideologies and interests, 'democracy' became the basis for forging new
relationships in the post-cold war [sic] order.").
20. See, e.g., Peter Schwab & Adamantia Pollis, Globalization's Impact on Human
Rights, in HUMAN RIGHTS: NEW PERSPECTIVES, NEW REALITIES, at 212-13 (Adamantia
Pollis & Peter Schwab eds., Lynne Rienner Publishers, 2000).
284
Loy. L.A. Int'l & Comp. L Rev.
[Vol. 28:279
substantive changes in American legal, political, social, and
economic institutions.2 It is well established that these changes
contributed to the ushering in of a rights movement that not only
transformed the institutional infrastructure of North American
cities but that would ignite the global human rights movement of
the twenty-first century. From the Philippines to Turkey and Japan
to Russia, civil rights movements have led to transformations in
national conceptions of rights and entitlements.22 In Africa and
Latin America, states from Nigeria to Chile, Mozambique to Peru,
and pro-democracy movements throughout the third world, have
succeeded in ousting dictators, the result being the eventual
establishment of new legal regimes that are becoming more in line
with Western nations. 23 The resultant democratization and ROL
imperatives that are part of the new human rights message have
been driven not only by nongovernmental organizations (NGOs),
but also states and international organizations witnessing the
emergence of global religious revivals growing at rapid speeds of
expansion.
Accordingly, the explosive popularity of African Islamic
revitalization and the spread of Shari'a during the 1990s were
exasperated because of emerging ROL and democratization
movements worldwide. For indeed, many different theories have
21.
See generally MARY L. DUDZIAK, COLD WAR CIVIL RIGHTS: RACE AND THE
IMAGE OF AMERICAN DEMOCRACY (Princeton Press, 2000) (exploring the U.S. civil
rights movement during the Cold War); WILLIAM T. MARTIN RICHES, THE CIVIL RIGHTS
MOVEMENT: STRUGGLE AND RESISTANCE (William T. Martin Riches, 1997) (discussing
the impacts of race and gender movements in the U.S.).
22. See, e.g., Dante B. Gatmaytan, It's All the Rage: Popular Uprisings and Philippine
Democracy, 15 PAC. RIM L. & POL'Y 1 (2006) (summarizing the "people power"
movement in the Philippines); Onuma Yasuki, Paper presented following the Stefan A.
Riesenfeld Symposium 2001, JapaneseWar Guilt and Postwar Responsibilitiesof Japan, 20
BERKELEY J. INT'L L. 600, 611, 618 (2002) (evaluating the positive legal and social impacts
of the civil rights movements for Koreans in Japan); Elizabeth Messud, Symposium, The
Status of Women in New Market Economics: Russian Women and Women's Rights: A Case
Study in Universalist/ Cultural Relativist Debate, 12 CONN. J. INT'L L. 77, 111-12 (1996)
(discussing the objectives of the women's rights movement in Russia).
23. See, e.g., JOHN N. PADEN, MUSLIM CIVIL CULTURES AND CONFLICT
RESOLUTION: THE CHALLENGE OF DEMOCRATIC FEDERALISM IN NIGERIA 43, 50
(Brookings Institution, 2005) (noting Nigeria's recent attempts at democratic federalism
and the government's announcement of a new constitution based on the U.S. "federal
model"); Shepherd's Son Wins Presidency of Peru, IRISH TIMES, June 5, 2001, at World 11
(reporting Mr. Alejandro Toledo of Peru's pro-democracy movement won the 2001
presidential race); Laurie Goering, Chile's PinochetWon't Step Down Quietly..., ST. LOUIS
POST-DISPATCH, Feb. 6, 1998, at A12 (reporting the "courage" of pro-democracy
Chileans challenging Gen. Augusto Pinochet's political regime).
2006]
Internationalizingthe Statecraft
been advanced for the rise of radical global Islamic revivalism, the
implementation innovations of Shari'a law24 in various regions
around the world, and the global spread of democratization and
respect for Rule of Law. Scholars writing about the crises of ethnic
and religious revivalism and related violence between Muslims and
Christians in various parts of Sub-Saharan Africa have looked to
explain the allegedly systematic murders of Christians by Muslims
as rooted in religious strategies to reclaim age-old practices,
thereby defending Islamic power.25 In other words, the violence is
believed by some to be rooted in Islamic attempts to reclaim
political power in the face of perceived losses to increasing
democratization initiatives. This narrative of the revival of Islam
describes Islamic reclamation of the once powerful history of
Muslim dominance in the modern world. It describes Islamic
"revivals" as being mobilized within larger networks of what many
adherents refer to as global Islamic "awakenings." These
"awakenings," involve a return to "tradition" as a means of
combating corruption and addressing various political injustices
within the secular state. They are, therefore, legitimized by the
introduction of Shari'a judicial sanctions." Such a revival of archaic
religious traditions and moral codes represent a domain of
transnational justice and retribution that is in keeping with the
fringes of Islamic religious governance. As such, both the moral
claims of human rights institutions and the moral claims of
increasing fundamentalisms, represent struggles over power,
24. The Shari'a is a code of living for Muslims, and it "is considered to be a divine
law, the authority of which depends on the revealed word of Allah, or God." Bharathi
Venkatraman, Islamic States and the United Nations Convention on the Elimination of All
Forms of Discrimination Against Women: Are the Shari'a and the Convention
Compatible?, 44 AM. U. L. REV. 1949, 1964 (1995); see also Michael Gallagher,The Many
Faces of Sharia, BBC NEWS, June 21, 2000, http://news.bbc.co.uk/2/hi/africa/621126.stm
(describing Shari'a law and its worldwide following). Because it is a code for living, "[a]
major feature of the Shari'a is that it draws no distinction between the religious and the
secular, between legal, ethical, and moral questions, or between the public and, private
aspects of a Muslim's life." Venkatraman, supra, at 1964.
25. See RITA KIKI EDOZIE, Democratizationin Multi-Religious Contexts: Amina vs.
the (Disunited) States of Nigeria in LOCAL INSTITUTIONS, GLOBAL CONTROVERSIES:
ISLAM IN SUB SAHARAN AFRICAN CONTEXTS (Kamari M. Clarke, ed.); MISTY BASTIAN,
TERROR AND VIOLENCE: THE IMAGINATION AND THE UNIMAGINABLE (2006) (in
relation to Muslim/Christian conflict in Nigeria).
26. This process of the colonial mediation of customary and traditional courts has a
comparative history of adhering to customary procedural rules with common law
substantive rules. See JOHN MERRYMAN ET AL., THE CIVIL LAW TRADITION: EUROPE,
LATIN AMERICA, AND EAST ASIA 8-9 (Michie Co. 1994).
286
Loy. L.A. Int'l & Comp. L Rev.
[Vol. 28:279
authority, and the force of law.
What we see with the Islamic revitalization movements,
therefore, is a challenge to secular democracies and its related
tenets of public morality as an expression of dissatisfaction with a
political regime fundamentally aligned with an implicitly Christian
system7 Ultimately, this kind of narrative often attributes to
religion a solely political function and considers the laws of nation
states and international law fundamentally separate from religious
practice. However, religious revivalisms must not be seen as
separate from the democratization process; they must be seen as
constitutive of them.
Accordingly, the struggle for Islamic sovereignty is deeply
connected
to
the role
of globalization
in Islamic
"fundamentalism."' The successful 1979 revolution of the Iranian
people against the Pahlavi dynasty led to the emergence of an
Islamic government under the leadership of the Ayatollah
Khomeini in Iran. As is believed, this provided inspiration to
Muslims globally who saw in Islam a viable alternative to both
Communism and neo-liberal capitalism. In support of this
unprecedented event, various groups in different parts of the
world joined in the celebratory momentum, adopting the slogans
of the Iranian revolution, including "neither east nor west, Islam
only."29 Underlying these claims is an argument that the
repercussions of worldwide globalization have been an arousal of
cultural insecurity and uncertainty about identities and political
control, further resulting in attempts to redefine Islamic practice.
In the Sub Saharan African state of Nigeria, a state not
traditionally seen as Islamic, a similar wave of global Islam has
engulfed the Nigerian North, leading to the implementation of the0
Islamic Shari'a penal code in twelve of Nigeria's thirty-six states?
27. See MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM
(Talcott Parsons trans. 2001). Weber evaded the age-old debates about explicit religiosity
and, instead, spoke of the fundamental tenets of Protestantism that has shaped the cultural
logics of capitalism. Id. at 95-154. As thus, and in the West, the foundations of the modern
state were structured around capitalist exchange and conceptions of value that privileged
the cultural logics of Christianity at the determinant of other religious approaches. Id. at 312.
28. See Sanusi Lamido Sanusi: Fundamentalist Groups And The Nigerian Legal
System: Some Reflections, http://www.whrnet.org/fundamentalisms/docs/doc-wsf-sanusinigeria-0311.rtf.
29. See Hauwa Ibrahim, Legal Reform And Review Of Some Sections Of The Sharia
Penal Code Law Of Nigeria (May 4, 2004) (unpublished manuscript, on file with author).
30. Nmehielle, supra note 18, at 731; see also Nigerian Muslims Welcome Sharia Law,
2006]
Internationalizingthe Statecraft
The implementation of Islamic criminal law in the Northern states
has not been without controversy; the controversies have been tied
to challenges over governance, resources, and the basis of the
authority of different forms of rule. 1
One approach to examining the growth of this form of Islamic
revivalism in the Nigerian federation is that the nation is getting
more decentralized, and part of the decentralization is taking the
form of cultural self-determination." Another explanation for the
rise of Shari'a has entailed seeing it as a political bargaining chipthat is, recognizing the ways which new norms of democratization
have been pushed forward by a Christian president from the
South. This is leading to the North's loss of political influence in
the Nigerian federation. As a result, various Muslim political
leaders are asserting new forms of autonomy and power.
Alongside such inter-related developments have been parallel
social movements. These movements have been influenced by the
hegemonic secularization of human rights norms and are
producing renewed alliances in the form of revivalist countermovements toward the return to utopian possibilities. This
explanation of the secular roots of religious revivalism is
compelling in so far as religious inspired violence is related to
hegemonic power in the life of the law.
Some scholars dismissive of the place of Islamic religion in
public life have identified the problem as that of religious
irrationality versus modern secular rationality. As such, the Islamic
Shari'a is presented by various theorists as an antiquated
expression of jurisprudence because it is seen as lacking key
conceptions of gender equality and notions of agency, freedom,
and autonomy central in liberal thought.33 By arguing that the
development of such Islamic revivalist and religious movements
will be replaced by an irreversible evolutionary process, and that a
notion of secularism that is devoid of religion will prevail, such
scholarly positions presume that not only is true individual
freedom and autonomy absent from religious governance, but that
BBC NEWS, Jan. 27, 2000, paras. 7-10, 14-15 (reporting controversies over the introduction
of Shari'a in Kano and Niger).
31. Herman, supra note 2, at paras. 5-6; Nmehielle, supra note 18, at 732-33.
32. See generally id. at 739 (listing reasons proffered for the change to Islamic law in
Northern Nigeria).
33. See, e.g., RONALD DWORKIN, SOVEREIGN VIRTUE: THE THEORY AND
PRACTICE OF EQUALITY 153-155 (2000); MICHAEL IGNATIEFF, HUMAN RIGHTS AS
POLITICS AND IDOLATRY 59-62 (Amy Gutmann ed., 2001).
288
Loy. L.A. Int'l & Comp. L Rev.
[Vol. 28:279
the secular is void of religiosity. This is far from true. Such
suggestions of Islamic factional irrationality, underdevelopment,
and agentive deficits are misleading and produce unsatisfactory
understandings of the motivations of certain forms of
fundamentalisms. What remains to be explored more fully,
however, are ways in which Islamic Shari'a and international
human rights law are similarly rooted in religious foundations.
That is, how the conceptual fields related to defining violent
actions as legitimate forms of "self-defense," or as genocide, and
therefore criminal are shaped by moral orders that are
foundationally religious. In exploring the relationships between
sanctioned and unsanctioned killing, just and unjust war, as well as
the ways in which both secular and religious spheres of
transnational knowledge and authority are shaping local
conceptions of rights and popular public norms, I compare the
conceptual universes and their juridical codes and punishments
surrounding the classification of ethnic violence in Northern
Nigeria. However, in thinking about how to define such forms of
action in relation to the ways that everyday practices are being
reshaped in locally relevant and transnational terms, I explore the
play of hegemonic power in relation to the international
codification of genocide -one of the four crimes under the subject
matter jurisdiction of the International Criminal Court (ICC). '
In the Rome Statute that empowered the making of the ICC,35
the presumptions of criminal liability borrow from precedents in
the aftermath of World War 116 Additional understandings were
drawn from the 1977 adoption of Protocol, Addition I to the
Geneva Convention37 in order to prosecute grave breaches of the
Convention.' Popularly referred to as the individualization of
34. WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL
COURT 26 (2d. ed. 2004) (2001).
35. See Rome Statute for the International Criminal Court art. 1, U.N. Doc.
A/CONF.183/9 (July 17, 1998) [hereinafter Rome Statute].
36. See generally SCHABAS, supra note 34, at 5-8 (describing the Nuremberg and
Tokyo trials as events leading up to the creation of the ICC); Jimmy Gurule, United States
Opposition to the 1998 Rome Statute Establishingan InternationalCriminal Court: Is the
Court's Jurisdiction Truly Complementary to National Criminal Jurisdictions?, 35
CORNELL INT'L L.J. 1, 2-3 (2001-02) (noting the International Law Commission's study of
the prosecution of persons charged with genocide in 1948).
37. Protocol Additional to the Geneva Convention of 12 Aug. 1949, and relating to
the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977,
availableat http://www.unhchr.ch/html/menu3/b/93.htm.
38. See Geneva Convention for the Amelioration of the Condition of the Wounded
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Internationalizingthe Statecraft
289
criminal responsibility, or command responsibility, the Rome
Statute assigns responsibility to commanders and other superiors
who participate in the commissioning or directing of crimes under
the subject matter jurisdiction of the court. 9 Despite long-standing
legal conceptions of individual culpability for individual actions,
this involves identifying individual agents who are in command of
forces that commit genocide, despite a chain of command, as
criminally liable.4" All that must be proven is that the individual
provided the "means of a substantial step" toward the execution of
that crime." By altering the role of the state as the final arbiter of
justice, the statute supplements state adjudication functions with
that of its international independent body-the ICC-through
which cases under the subject matter jurisdiction of the court can
be pursued. 2
In section five, I turn to an analysis of the Islamic political
crime known as Al Khurur' in order to examine how different
modes of calculating homicide may be rationalized in different
and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31;
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S.
85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6
U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, Aug. 12, 1949, 6 U.S.T.3516, 75 U.N.T.S. 287.
39. Rome Statute, supra note 35, at art. 28(a); Gurule, supra note 36, at 9-10, 40-43.
40. Rome Statute, supra note 35, at art. 25(3)(e)-(f).
41. Id. at art. 25(3)(f).
42. Id. at art. 17(1)(b); Gurule, supra note 36, at 6-9, 45 ("The Rome Statute creates a
supra-international appellate court with unchecked de novo review over national
jurisdictions.").
43. Al Khuruj is an Arabic word that is used to describe the Islamic conception of
justified aggression. It is a concept that developed after the writing of the Qur'an. There is
no hadith referring to it. It is a rebellion against the unjust that must be led by an Imam
against another Imam. It is a political act as much as it is a religious act. However it
describes action against a Muslim or a Muslim group to overthrow a Muslim ruler or a
repressive regime. See Khaled Abou El Fadl, PoliticalCrime in Islamic Jurisprudenceand
Western Legal History, 4 U.C. DAVIS J. OF INT'L L. & POL'Y 1, 13-14 (1998). If an
aggressive action is taken against someone who is a non-Muslim, then the term used is
Jihad for Jihad is an Arabic word that means "to strive" or to struggle, to exert oneself.
OXFORD DICTIONARY OF ISLAM, supra note 6, at 159; Jamaal Zarabozo, The Concepts of
"Extremism" and "Terrorism", 8 J. ISLAMIC L. & CULTURE 49, 63 (2003). In some cases it
describes the conversion of unbelievers toward moral betterment and in other contexts it
describes the internal struggle against one's inner evil. OXFORD DICTIONARY OF ISLAM,
supra note 6, at 160; Zarabozo, supra, at 63. Historically, it was used by a range of Muslims
to express praiseworthy goals. See SHERMAN A. JACKSON, ISLAMIC LAW AND THE
STATE: THE CONSTITUTIONAL JURISPRUDENCE OF SHIHAB AL-DIN AL-QARAFI (E.J.
Brill, 1996). However, today with the American "War on Terror," it holds for a range of
non-Muslims negative connotations of terrorism. Zarabozo, supra, at 60-65.
290
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[Vol. 28:279
spheres of meaning and authority. In relation to differences in
criminal liability, I detail the ways that the concept of intention is
also useful for exploring differences in culpability. Through this
examination, and by comparing the notion of intention used to
delineate the crime of genocide to the notion of Al Khuruj, I hope
to provoke considerations concerning how various definitions of
crimes, formulated for different political purposes, are used in the
regulation and punishment of violence, though not necessarily in
the eradication of it. Here, although particular acts of violent
aggression may be classified by Western jurisprudence as well as
international criminal law as "crimes," accompanying some forms
of violence are classifications of those acts as obligations
committed toward the defense of political goals, and on behalf of a
religious leader. The goal, however, is not a comparative one for
the sake of producing a relativist analysis of violence. Rather, by
exploring seeming differences in doctrinal spheres of "religious"
and "Western" legal thought, I highlight the continuing relevance
of critically assessing how we understand political rebellions in
relation to how the developing corpus of international criminal law
is redefining such forms of rebellion in relation to crimes such as
genocide. However, such approaches to a comparative inquiry do
not require that we presume epistemological relativism' as the
way to accept all kinds of violence as foundationally legitimate in
their own spheres of meaning.
Epistemological relativism asserts that different cultural
groupings have varied cognitive senses of the world that produce
different practices that are not comparable. It has been used to
critique advocates of Western approaches to rationality, however,
the drawback with this approach is its suggestion that each cultural
practice exists as separate and unaffected by each other and their
larger relations of power. In general, relativism has been identified
as an argument that purports that all approaches are equally valid
or that all moralities are equally good and suggests that all belief
systems are true.
Anthropologist Mark Whitaker has argued that there exists
three distinct, though overlapping, variations of relativisms:
epistemological (or also called cognitive relativism), conventional
44. This realm of the empirical allows for an incorporation of the relative differences
in distinctions, reserving the moral and ethical sphere for different sets of questions. See
Mark P. Whitaker, Relativism, in ENCYCLOPEDIA OF SOCIAL AND CULTURAL
ANTHROPOLOGY 478-82 (Alan Barnard & Jonathan Spencer eds., 1996).
2006]
Internationalizingthe Statecraft
cultural relativism, and ethical relativism. In the realm of
conventional cultural relativism, most social comparativists would
agree that behavioral variations should be explored within the
frameworks within which they are expressed. It represents a
relatively conservative, though popular anthropological approach
to human variation, but that ultimately represents more of what
Whittaker refers to as a disciplinary "common sense" than a
proper philosophical position. Critics of cultural relativism,
however, have dismissed such approaches, suggesting that it is
pernicious because it undermines the improvement of the human
condition.
The third, ethical relativism, represents the assertion that
universal and cross-cultural judgments are not useful because
moral values are products of different cultural historical
developments over time. Popular in the 1930s when functionalism
was predominant in British social and American cultural
anthropology, this type of relativism ranging from intercultural
tolerance to ethical compartmentalization, shaped the belief that
social ethical practices have taken shape as a result of social
structural formations and, as such, serve a critical function with
which we should not infer. Though all three forms of relativisms
have their limitations, they represent an effort in the social
sciences, and especially anthropology, to address relationships
between culture, difference, and how to measure and frame
methodological approaches that are appropriately suited for
comparing complex social dynamics.
In this regard, I respond to Professor Khaled Abou El Fadl's
interrogation into whether the legal order that characterizes
dissidents should be distinguished from that of the common
criminal45 and instead recast the question by producing an
understanding of the crime of genocide in relation to its alliance
with the secular statecraft and larger issues of hegemony and
power. However, by recasting the focus from the relative
epistemological politics of difference in classifying crime to that of
the play of power involved in making some spheres of knowledge
and power dominant over others, I consider the hegemonic control
of the state over the codification, interpretation, and production of
the meaning of justified violent action. The goal is to examine the
challenges of international criminal law by showing that both the
45. Abou El Fadl, supranote 43, at 13-14.
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Loy. L.A. Int'l & Comp. L Rev.
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religious and legal codes that shape the meanings of genocide are
not useful in simple relativist frames. Rather, they are
fundamentally intertwined and both have been used to mobilize
related practices of democratically aligned power. And yet, despite
this, it has been the secular state that in liberal democracies of the
West that-through a grammar of equal rights, civil liberties, and
individual entitlements -has maintained hegemonic control over
the meanings of justice. The aforementioned point of departure
presumes that nation states have not become irrelevant and that
we are not living in a post-nationalist era 6 but that the refinement
of the democratic order over the past century has not been for the
purpose of rendering secondary the power of the secular state. The
internationalization of criminal law and the expansion of its
jurisdictional reach reflect attempts by state actors to comply with
international treaties and agreements as well as rights-based
domestic pressures. For despite the drive toward global
governance, whether through international institutions or statebased activities, we shall see that the modern statecraft, with its
historically religious influences, continues to define, discipline,
control, and regulate various categories of crime, their meanings,
and their punishment.
II. INTERNATIONAL CRIMINAL LAW AND THE AUTHORITY OF THE
STATECRAFT
The ICC was formed with the signatory power of 120 nation
states, and the eventual ratification of 60 of the 120.47 With its
formation, the Court became the first permanent international
body able to gain the power to adjudicate individuals for four
categories of offenses: war crimes, the crime of genocide, crimes
against humanity, and the crime of aggression (when defined). 4 Its
formation was connected to the need to end impunity made
possible by gaps in national regulation and to respond to atrocities
in a post-war climate.4'9 As such, it has the power to investigate and
prosecute individuals when they are alleged to have committed the
"most serious crimes of concern to the international community as
46. See KAMARI M. CLARKE, MAPPING YORUBA NETWORKS:
AGENCY IN THE MAKING OF TRANSNATIONAL COMMUNITIES (2004).
47. SCHABAS, supra note 34, at 18.
48. Rome Statute, supra note 35, at art. 5(1).
49. Id. at Preamble.
POWER
AND
2006]
Internationalizingthe Statecraft
293
a whole."'
With the interactions between and influences of state
Rights
of hundreds
of Human
delegates,
members
Nongovernmental Organizations, academics, lawyers, and
concerned citizens, on July 17, 1998, during the United Nations
Diplomatic Conference of Plenipotentiaries in Rome, Italy, 120 of
the world's nation states authorized the formation of the ICC
through the signing of the Rome Statute." As such, the ICC gained
its authority through signatory powers of national governments
that supported the adoption of a treaty known as the Rome
Statute for the International Criminal Court. 2 The result was a
comprehensive text that established the ICC and determined its
composition and function. 3
On July 1, 2001, the ICC entered into force with the
ratification of the treaty by 60 national states;' and by April 2003
when the Assembly elected a Prosecutor and 18 judges, it signaled
the beginning of a new phase in the development of the
supranational reach of criminal law.5 As of August 2005, the
Rome Statute, an international treaty now in force, has succeeded
in claiming membership of over one hundred nation states, known
as "state parties" - all states which have both signed and ratified
the Rome Statute"6-giving it jurisdiction over crimes within the
subject matter jurisdiction of the court and committed on the
territory of a signatory state.57 In other words, it is believed that
50. Id.
SCHABAS, supranote 34, at 18; Gurule, supra note 36, at 2.
52. See id. at 20.
53. The text of the Rome Statute for the ICC contains a preamble and 128 articles,
which are grouped into 13 sections. It delineates the court's subject matter and
jurisdiction, both temporally and substantively; it codifies the crimes and appropriate
sentences. Procedural rules are set forth and means are noted for the development of
procedural norms in conjunction with the general principles of criminal law that are to
serve in the operation of the ICC. See Rome Statute, supra note 35.
54. SCHABAS, supra note 34, at 19.
55. Id. at 20-21.
56. These include all the members of the European Union, and all of NATO, with the
exception of Turkey and the United States. See Multilateral treaties deposited with the
U.N. Secretary-General: Ratification Status of the Rome Statute of the International
Criminal
Court,
http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/
chapterXVIII/treatyll.asp (last visited March 27, 2006).
57. Rome Statute, supra note 35, at arts. 5, 12; see also SCHABAS, supra note 34, at 78.
Under the Clinton administration, the United States signed and became a state party to
the Rome Statute; the signature and its party status were later rescinded by President
George W. Bush. SCHABAS, supra, at 21.
51.
294
Loy. L.A. Int'l & Comp. L Rev.
[Vol. 28:279
those who have both signed and ratified the statute have placed
themselves under the jurisdiction of the ICC,"8 imputing large-scale
atrocities committed by individuals -especially
high-ranking
officials-under the jurisdiction of the court. 9 The coming into
force of the ICC, with its jurisdictional reach into both the life of
state parties and non-state parties, poses a challenge to former
conceptions of sovereignty, even as it states, "[recall] that it is the
duty of every State to exercise its criminal jurisdiction over those
responsible for international crimes."' In its preamble, the Statute
further establishes the domain of the international, rather than the
national, as the unit of humanitarian concern, by "[a]ffirming that
the most serious crimes of concern to the international community
as a whole must not go unpunished and that their effective
prosecution must be ensured by taking measures at the national
level and by enhancing international cooperation."6 ' As such, the
ICC is setting new norms for the enforcement of what constitutes
particular forms of "crime" and what should be the jurisdictional
reach of extra-national juridical bodies.
Practically, however, the court is described as one constructed
to address the many gaps in national regulations that currently
characterize the limitations of the enforcement of law outside the
jurisdiction of national statutes. The jurisprudence of the ICC is
described by not only state officials but the networks of thousands
of NGO representatives as bringing criminal law to a level of
international attention that will revolutionize the ways that people
understand states' responsibility to "humanity" as well as
transform conventional conceptions of the codification of crime
and determinants of criminal evidence.63
58. Rome Statute, supra note 35, at arts. 5, 12. See also SCHABAS, supra note 34, at
78; Gurule, supra note 36, at 12.
59. Rome Statute, supra note 35, at arts. 5. See also SCHABAS, supra note 34, at 26.
Clauses of immunity have in the past protected governmental officials from being
prosecuted for crimes against humanity committed while in office. The International Law
Commission structured the Rome Statute in such a way that eradicated protections against
immunity. Rome Statute, supra, at art. 27.
60. Rome Statute, supra note 35, at Preamble.
61. Id.
62. See SCHABAS, supra note 34, at 14.
63. Id. at 25.
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Internationalizingthe Statecraft
295
III. CRIMES UNDER THE ROME STATUTE
A. The Crime of Genocide
The Rome Statute provides for the definition of the crime of
genocide;' however, the definition of the crime of genocide is
similar to the definition in Article 2 of the Genocide Convention.6"
This definition can also be found in the ILC Draft Code Against
the Peace and Security of Mankind,' and the Statutes of the ad
hoc Tribunals for the former Yugoslavia67 and Rwanda.5'
B. Crimes Against Humanity
A crime against humanity is defined in the Rome Statute as a
crime "committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the
attack."'69 The crimes against humanity have been recognized in
international instruments as part of international law.since World
War II when it was popularly used at Nuremburg.7 Today, the
definition of crimes against humanity in Article 7 of the Rome
Statute extends beyond that which was contained in the
Nuremberg Charter. It is used to describe multiple acts of
inhumanity "committed as part of a widespread or systematic
a-1ckaaift
-A
N~~t~~
;i
t--w me or
wartime.71
64. Rome Statute, supra note 35, at art. 6.
65. International Convention on the Prevention and Punishment of the Crime of
Genocide, art. 2, adopted Dec. 9, 1948, 78 U.N.T.S. 277.
66. Draft Code of Crimes Against The Peace and Security of Mankind, art. 17, U.N.
GAOR., 51st Sess., U.N. Doc. A/CN.4/532 (1996).
67. See Statute of the International Criminal Tribunal for the Former Yugoslavia, art.
4, U.N.S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/827 (1993),
amended by U.N.S.C. Res. 1166, U.N. SCOR, 53rd Sess., 3878th mtg., U.N. Doc.
S/RES/1166 (1998) [hereinafter ICTY Statute]; see also Prosecutor v. Jelisic, Case No. IT95-10-T 14, Judgment (Dec. 14, 1999). Mr. Jelisic was convicted by the Trial Chamber for
violations of the laws or customs of war and crimes against humanity, committed in May
1992 in Brcko, a town in North-Eastern Bosnia and Herzegovina. The Trial Chamber
imposed a single sentence of 40 years imprisonment, the harshest sentence handed down
by a Trial Chamber of the Tribunal at the time. ICTY Statute, Judicial Supplement 26;
Prosecutor
v.
Jelisic,
Case
No.
IT-95-10-A
(July
5,
2001),
http://www.un.org/icty/Supplement/supp26-e/elisic.htm.
68. See Statute of the International Criminal Tribunal for Rwanda, art. 2, U.N.S.C.
Res. 955, U.N. SCOR, 49th Sess., 3453th mtg., at art. 3, U.N Doc. S/RES/955 (1994).
69. Rome Statute, supranote 35, at art. 7.
70. See SCHABAS,supra note 34, at 41-51.
71. Rome Statute, supra note 35, at art.7.
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[Vol. 28:279
The Statute identifies eleven acts that could be classified as
crimes against humanity. They include murder7 2; extermination 73 ;
enslavement"4 ; deportation or forcible transfer of a population75 ;
imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law7 6; torture 77;
rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of sexual violence of
comparable gravity 8; persecution against any identifiable group or
collectivity on political, racial, national, ethnic, cultural, religious,
gender or other universally recognized grounds 79 ; enforced
disappearance of persons'; apartheid"l; and other inhumane acts of
a similar character intentionally causing great suffering or serious
injury to body or to mental or physical health.'
C. War Crimes
War crimes are traditionally defined as violations of the most
fundamental laws and customs of war.' There are four categories
of war crimes outlined in Article 8 of the Rome Statute. ' As noted
in the Rome Statute: "[t]he Court shall have jurisdiction in respect
of war crimes in particular when committed as part of a plan or
policy or as part of a large-scale commission of such crimes."85 War
crimes constitute a traditional category of international crimes and
the existence of universal jurisdiction over war crimes is generally
72. Id. at art.7(1) (a).
73. Id. at art.7(l) (b).
74. Id. at art.7 (1) (c).
75. Id. at art.7 (1) (d).
76. Id. at art.7 (1) (e).
77. Id. at art.7 (1) (f).
78. Id. at art.7 (1) (g).
79. Id. at art.7 (1) (h).
80. Id. at art.7 (1) (i).
81. Id. at art.7 (1) (j).
82. Id. at art.7 (1) (k).
83. See SCHABAS, supra note 34, at 51-52; see also Geneva Convention (I) for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,
art. 3, Aug. 12, 1949, 75 U.N.T.S. 31; Geneva Convention (II) for the Amelioration of the
Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea,
and Sick in Armed Forces in the Field, Art. 3, Aug. 12, 1949, 75 U.N.T.S. 85; Geneva
Convention (III) Relative to the Treatment of Prisoners of War, Art. 3, Aug. 12, 1949, 75
U.N.T.S. 135; Geneva Convention (IV) Relative to the Protection of Civilian Persons in
Time of War, Art. 3, Aug. 12, 1949, 75 U.N.T.S. 287.
84. Rome Statute, supra note 35, at art.8.
85. Id. at art.8.
Internationalizingthe Statecraft
2006]
recognized.86 War crimes are grave breaches under the 1949
Geneva Conventions which apply to international armed conflict,'
other serious violations of the laws and customs applicable to
international armed conflict,' violations of Article 3 common to
the Geneva Conventions89 which applies to non-international
armed conflict and other serious violations of laws and customs
applicable in non-international armed conflict.' Traditionally, war
crimes have been regarded as serious violations of the law
applicable to international armed conflict.91 Today, however, the
Rome Statute is considered to have advanced international
humanitarian law by including in the definition of war crimes
serious violations of international humanitarian law committed
during non-international armed conflicts.' This definition includes
specific sexual and gender-based offences,93 conscription and
enlistment of children under fifteen94 and attacks against
humanitarian personnel as war crimes.95
D. The Crime of Aggression
During negotiations for the establishment of the ICC, there
was general agreement that the Court would only have jurisdiction
if national courts were unable or unwilling to deal with the alleged
crime in a fair way.9" At that time, aggression was identified as one
of the four core crimes and specifically subject to the provision
under article 5(2) of the Rome Statute.' However, in the absence
of an agreement on what constitutes the crime of aggression, the
ICC jurisdiction is still not operable.98 To date, the Rome Statute is
"consistent with the relevant provisions of the Charter of the
United Nations ' ' 9 and amendments to the definitions adopted at
Rome are expected to be considered at a review conference seven
86.
87.
88.
89.
90.
91.
92.
93.
94.
95.
96.
97.
98.
99.
supra note 34, at 51-54.
Rome Statute, supra note 35, at art.8 (2) (a).
Id. at art. 8 (2) (b).
Id. at art. 8 (2) (c).
Id. at art.8 (2) (d).
SCHABAS, supra note 34, at 53.
Id. at 55-56.
Rome Statute, supranote 35, at art.8 (2) (b).
Id. at art.8 (2) (b) (xxvi).
Id. at art.8 (2) (b) (xxiv).
SCHABAS, supra note 34, at 14; Gurule, supra note 36, at 6-7.
Rome Statute, supranote 35, at art. 5(2).
SCHABAS, supra note 34, at 32.
Id.
SCHABAS,
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298
[Vol. 28:279
years after the entry into force of the treaty."
The codification of the aforementioned crimes of the ICC
represents a particular modernity of the secular state, especially in
relation to the hegemonic presence of the International Rule of
Law. However, in thinking about the development of the modern
state and the rights and obligations of the individual since the
nineteenth century, tracing a genealogy of the central principles of
democracy, law, and constitutionalism that shaped contemporary
international law is instructive in demonstrating that the
supremacy of individual rights is far from natural or universal.
Rather, it represents the religious roots of the human as sacred
and the development of the accompanying language of rights in a
context of coercive Western power.
IV. RELIGIOUS AND SECULAR FORMATIONS
The ancestors of what is today known as international human
rights in the modern West took shape within historically specific
nineteenth century conceptions of human sanctity and the moral
authority of the state as the arbiter of justice. Beginning with the
idea of Natural Law in Latin Christendom which located rules of
sociality, creation, and the proceeds of that creation in a "fixed and
invariable relation,''...the ideational antecedents for modern
human rights first appeared as a form of political contestation
closely linked to the volatility of property in relation to the need to
protect one's natural right from the arbitrariness of government. 0 2
For the modern European nation state involved the monopoly of
violence and instruments of coercion and, as a result, the
development of a culture of rights took shape as a response to an
abusive state.
During this early period, however, the distinction between
secular laws and laws that derived their authority from
spiritual/religious realms did not produce a separation of the
secular as the economy, law, politics, and education from the
spiritual realm of the Church.1 3 Instead, the distinction between
the religious and the secular changed as a result of the sixteenth
century Reformation that followed the breakup of the medieval
100. Id. at 34.
101.
CHARLES DE SECONDAT, BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS,
1 (Thomas Nugent trans., 1952).
102. Id. at 297-299.
103.
See TALAL ASAD, GENEALOGIES OF RELIGION 27 (1993).
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Internationalizingthe Statecraft
299
Church."° Prior to the mid-seventeenth century, Christian values
espoused in both Western and Eastern Europe not only
constrained those in power but also obliged those over whom
power was exercised to comply. Warring between Catholic and
Protestant sectors was rampant during this period and religious
unity was seemingly impossible since religious toleration was not a
widely espoused value in the development of the early European
church. Religious conflict had proved to be destructive to the
social order since the imposition of religious faith by one religious
party on another led to highly volatile enterprise."5
By the mid-seventeenth century in Western Europe, it was
recognized by various leaders that for social peace to be restored,
religion would have to be set aside and a new basis for rule
established." It was the signing of the Peace of Westphalia, 107 a
treaty signed in Europe intended to end religious wars, which
highlighted the birth of modern secular state. This new basis for
modern governance - a basis of authority shaped by the natural
authority of law-emphasized the centrality of the individual
conscience in matters of faith."° As Talal Asad has outlined in his
explication of the development of the modern state, during the
period in which religious freedom and toleration was becoming the
dominant value, it became important to develop particular morals
that would be tied to the political order of the secular state. "
These conceptions were driven by the need to regulate citizens to
obey the law and respect the authority of civil government."'
OWEN CHADWICK, THE REFORMATION 12-24 (1972).
105. This theory of the religious roots of secularism represents the position of Wolfhart
Pannenberg. Wolfhart Pannenberg, Christianityand the West: Ambiguous Past, Uncertain
Future,48 FIRST THINGS: THE JOURNAL OF RELIGION, CULTURE, AND PUBLIC LIFE 18,
paras. 9, 13 (1994). According to Professor Pannenberg, "Intolerant dogmatism was
probably the most disastrous sin of traditional Christianity from the early centuries up to
the beginnings of modern times." Id. at para. 9. See generally E. FRANK TUPPER, THE
THEOLOGY OF WOLFHART PANNENBERG (Westminster Press, 1973) (examining the life
and theology of Professor Pannenberg).
106. Wolfhart Pannenberg, supra note 105, at 18, paras. 21, 23.
107. Treaty of Westphalia: Peace Treaty between the Holy Roman Empire and the
King of France and their Respective Allies, Oct. 24, 1648, available at
http://www.yale.edu/lawweb/avalon/westphal.htm.
108. MALCOLM N. SHAW, INTERNATIONAL LAW 1161-62 (5th ed., Cambridge Press,
2003)
109. See C. B. MACPHERSON, POLITICAL THEORY OF POSSESSIVE INDIVIDUALSM:
HOBBES TO LOCKE 29 (1962).
110. See ASAD, supra note 103, at206-207.
111. See R.E. ALLEN, SOCRATES AND LEGAL OBLIGATION 103-05,111-12 (1980).
104.
Loy. L.A. Int'l & Comp. L Rev.
[Vol. 28:279
However, it became clear that in order for people to make
determinations about what was moral, it was important for
morality to be understood as legitimate.
In Western Europe, new conceptions of legitimatizing
government were developed with the notion of representative
government. 112 As a pragmatic notion by which political and social
order was based, it developed as the foundation of the modern
secular state."3 Representative government was then followed by
the conception of human nature around which systems of natural
law and natural morality took shape through the advancement of a
natural theory of government." ' The Enlightenment period and
the development of science contributed to the religious idea of
natural government and law by fueling the idea of the eternal laws
of nature. This influenced Thomas Hobbes' conception of the
social contract theory in which he argued that in order to maintain
individual freedom within the limits of reason and law, there was a
necessity for a civil government that would secure individual
survival according to the natural freedom of individuals. 5 Using
the cultural concept of human nature as the foundation of the
political and legal order, the autonomy of secular society was
defined as that which was independent from the influence of
religious tradition.' 6
However, what remains critical to explore in the context of
the codification of the law and its different influences is to
reiterate the formation of the modern secular state in relation to
the origins of modern capitalism as the structural foundation of the
sphere known as the secular.' 7 Max Weber's articulation of the
origins of modern capitalism is useful for exploring how the
political, economic, and cultural came together to privilege
112. See JOHN LOCKE, Two TREATISES OF GOVERNMENT 364-374 (Peter Laslett, ed.,
1988).
113. See id. at 364-374.
114. See id. at 216,364-374.
115. See THOMAS HOBBES, LEVATHIAN Parts I & II (Macmillan Pub. Co. 1958)
(1651).
116. See ASAD, supra note 103, at 23-25; see also ASAD, supra, at 229.
117. See ANTHONY GIDDENS, CAPITALISM AND MODERN SOCIAL THEORY: AN
ANALYSIS OF THE WRITING OF MARX, DURKHEIM AND MAX WEBER (1992); JURGEN
HABERMANS, THE STRUCTURAL TRANSFORMATION OF THE PUBLIC SPHERE: AN
INQUIRY INTO A CATEGORY OF BOURGEOIS SOCIETY 14-26 (1993); ROSE NiKOLAS,
POWERS OF FREEDOM: REFRAMING POLITICAL THOUGHT (1999); MACPHERSON, supra
note 109, at 54-57, 206-208.
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Christianity within modern secularism."' His account of modern
capitalism was developed to demonstrate that it was not simply
economic development that shaped the capitalist economy, but a
cultural conception of appropriate human conduct that took shape
through the Calvinist notion of predestination. ' Weber
demonstrated how the impact of the Christian sect of Calvinism
shaped the cultural logics of modern Western Capitalism.120 He
explored how Calvin's teachings about God's eternity and the
possibility of being among the chosen few provided a powerful
motivation by which people worked and engaged in conscientious
responsibilities.12 1 This form of rationality of work and values was
spiritually Christian and though it was not a starting place in public
articulations of government, it worked through a psycho-spiritual
and cultural sphere that constituted the principles of capitalist
logic, though represented as independent of it.122 Seen in this way,
the modern democratic articulation of the separation between
religion and government was shaped by the long-term
transformation of Christian values into capitalist ones. As such, a
radical break from Christianity was not needed since human
nature rather than religion was eventually transformed into secular
beliefs. 3
The consequent relationship between Christianity and socalled secular law followed since the ideas about murder, adultery,
morality, obedience, and freedom emerged from the foundational
texts of the Old Testament, as well as the New Testament (which is
said to have been derived from the teachings of Jesus Christ). One
such example-the notion that all humans are born to be free and
that those forms of freedom should be adhered to by othersoriginated in the passages of John 8:36 and the disciple Paul's
letter in Second Corinthians 3:17.124 In these passages, the Bible
taught that every human being was created to enjoy the freedom
118.
See MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM
(1930).
119. See WEBER, id., at 55-80. Indeed, "Capitalism was [considered] the social
counterpart to Calvinist theology." Id. at 2.
120.
121.
122.
See id. at 64-80.
See id. at 69, 71, 74.
See id. at 56-80.
123.
See KARL POLANYI, THE GREAT TRANSFORMATION: THE POLITICAL AND
ECONOMIC ORIGINS OF OUR TIME 111 (1944).
124. John 8:36 (King James) ("If the Son therefore shall make you free, ye shall be free
indeed."); 2 Corinthians3:17 (King James) ("Now the Lord is that Spirit: and where the
Spirit of the Lord is, there is liberty.").
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that comes from communion with God, but that it is only in Christ,
through redemption from sin and death, that such freedom is fully
realized.
In its modern incarnation, John Locke located freedom as the
natural condition of the human, the place of good. 25 In departing
from the Reformation conception of freedom, Locke argued that
freedom would allow for the pursuit of "pure freedom," and as
such, alongside reason it was positively related to law. 26 Today,
conceptualizations of freedom are often connected not to the
moral good of freedom, but to the presumed assumption of
freedom. However, it was the formation of the notion of the self,
Locke argued, that limited the contingent character of the
individual through a legal concept of the person. 127 This concept of
the person existed alongside a religious conception of the soul in
which it was the soul that needed protection from the potentialities
of everlasting damnation, as articulated in Christian doctrine of
Revelation." This interest in the potential condemnation of the
soul has resonances in the development of Western principles of
criminal law in which it was not only the soul of the guilty, but also
the soul of jurors as well as judges, that it was necessary to protect.
The Western model of the European secular state was linked
to the medieval version of human rights that drew on Aristotelian
thought. Aristotle identified a "natural right" as a right by birth, as
opposed to one accorded by convention. This idea of natural right
emerged out of feudal legacy and made it plausible for
seventeenth-century theorists, such as John Locke, to invoke
natUral rights as a principle of individual entitlement that could be
used against the relatively lawless structures of the early modern
state.'29 They also made it possible, in most liberal democracies,
perhaps inevitable, to separate the autonomy of secular society
from the influence of church and religious tradition.'30 From the
125. See LOCKE, supra note 112, at 94-96.
126. LOCKE, supra note 112, at 94-96.
127. See, e.g., LOCKE, supra note 112, at 287 ("[E]very man has a Property in his own
Person.This no Body has any Right to but himself.").
128. See Revelation 1:1 - 22:21 (King James) (the development of the last days and the
concern with the soul in the Holy Bible). For genealogical exploration, see James Q.
Whitman, The Origins of "Reasonable Doubt" (Yale Law Sch. Faculty Scholarship Series
paper No. 1, 2005).
129. See LOCKE, supra note 112, at 225, 229, 248; see generally LEO STRAUSS,
NATURAL RIGHT AND HISTORY (1953) (discussing the evolution of "natural right" from
Aristotle, to Locke, to Rousseau).
130.
See JEAN-JACQUES ROUSSEAU, A DISCOURSE ON THE ORIGIN OF INEQUALITY,
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development of the reasonable doubt clause as a protection for
jurors from the potentialities of everlasting damnation of their
souls for the wrongful conviction of an innocent man, to, what we
shall see in the next section, the codification of criminal law, its
conceptions of intention, thresholds for proof and determinants of
individual motives,'3 ' the formation of modern common law, like
the formation of Islamic Shari'a jurisprudence, has its foundational
principles in the religious roots of individual salvation of the soul.
Such notions of intention and the articulation of individual
responsibility are similarly connected to the morality of
personhood. They diverge in the transformation of relevant
modern authority.
V. CODIFICATION OF GENOCIDE AND CULPABILITY IN THE ROME
STATUTE FOR THE ICC
All three schools of jurisprudence-Islamic, Western
European Canon law, and the Common Law tradition-have
accumulated large bodies of case law on political rebellions and
forms of widespread ethnic killing; however, the treatment of the
basis for intention varies. In Western jurisprudence some but not
all crimes require a general proof of intent.132 The measures and
assumptions surrounding the notion of intention vary, as do the
measures of what forms of intention constitute culpability for
criminal action."3 A persistent dispute in American criminal law
has centered on the relevance of a defendant's motive in relation
to the extent to which they are criminally liable." At the heart of
the debate is the question concerning whether what is seen as a
permissible motive should exculpate someone who has committed
a criminal act. The strict interpretation of American criminal law is
that proof of intent is rarely made explicit since the motive is seen
as irrelevant to the liability of the crime.'35 Instead, culpability is
deduced from the criminal act and the assumption is that the
AND POLITICAL ECONOMY xvi, 11, 16-19, 32 (Roger D. Masters &
Christopher Kelly eds., Judith R. Bush et al. trans., 1992) (1754).
131. See Whitley R. P. Kaufman, Motive, Intention, and Morality in the Criminal Law,
POLEMICS,
28 CRIM. JUST. REV. 317, 317-335 (2003).
132. Id. at 318.
133. Id. at 317-335.
134. See, e.g., Guyora Binder, The Rhetoric of Motive and Intent, 6 BUFF. CRIM. L. R.
1, 34-66 (2002) (explaining the "Doctrine of Irrelevance of Motive" and the arguments of
its critics).
135. Binder supra note 134, at 65; Kaufman, supra note 131, at 319-321.
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consequences of the action were intended.136
In the realm of international criminal law regarding abuses by
high-level state actors distinguished by "intentional and knowing
behavior," the Rome Statute for the ICC requires conceptions of
intent that are adequate to gain prosecution of commanders either
for ordering a crime or for negligence in failing to prevent it. 137 The
crime of genocide, for example, borrows from the general
principles of Euro-American law and outlines two levels of
intent-general and specific. 38
General intent denotes crimes for which no measure is
established. 9 All that must be proven is the commission of the act
by the accused party." The authority of proof is drawn from the
presumed power of the treaty document. Specific intent (dolus
specialis), a popular concept in Roman-continental law, implies
that the perpetrator expressly sought to produce the criminal
action." ' In the international crime allegation of genocide, where
genocide refers to particular homicidal acts committed "with
intent to destroy, in whole or in part, a national, ethnical, racial or
religious group,"'42 finding guilt involves proof of a more precise,
specific intent, which links intention to the mental-psychological
136. Professor Whitley Kaufman has shown that there has been significant criticism
against this doctrine since on one hand some critics have felt that judges do tend to
consider motive. By showing the mischaracterization of the role of motive, he attempts to
uphold the orthodox assumptions that motive is irrelevant. Kaufman, supra note 131, at
324-333.
137. Rome Statute, supra note 35, at 28 (a).
138. SCHABAS, supra note 34, at 38 ("What sets genocide apart from crimes against
humanity and war crimes is that the act ...
must be committed with the specific intent to
destroy in whole or in part a national, ethnical, racial or religious group as such."); see also
21 AM. JUR. 2D Criminal Law §§ 127-128.
139. Id. at § 127.
140. Id. at § 127.
141. Specific intent is the "intent to accomplish the precise criminal act that one is later
charged with." BLACK'S LAW DICTIONARY 826 (8th ed., 2004). The most common usage
of "specific intent" is to designate a special mental element that is required above and
beyond any mental state required with respect to the actus reus of the crime. Common law
larceny, for example, requires the taking and carrying away of the property of another,
and the defendant's mental state as to this act must be established, but in addition it must
be shown that there was an "intent to deprive the possessor of [the property]
permanently." Id. at 896. Similarly, common law burglary requires a breaking and entry
into the dwelling of another, but in addition to the mental state connected with these acts
it must also be established that the defendant acted "with the intent to commit a felony
therein." Id. at 211. Ultimately, a defendant must not only intend the act charged but also
intend to violate law. Id. at 825.
142. Rome Statute, supra note 35, at art. 6.
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knowledge element (known as mens rea)'.3 with the physical
performance of the wrongful act/crime (known as actus reus, which
is Latin for "bad act").4 Therefore, to be guilty of the crime of
genocide in international law, one must show proof of specific
intent, which takes into account both the mens rea and actus reus,
to allow for a calculation of intention that is more precise with
reference to the consequence of carrying out one of the
enumerated crimes in Article II of the Genocide Convention ' or
Article 6 of the Rome Statute.'4
Culpability, and how it is designated, is another important
principle that is central to the interpretation of intent in
international criminal law. Under common law, it is well
established that conspiracy is defined as the agreement of two or
more persons to commit a crime.4 7 In most cases, it does not
require the actual commission of the crime itself.'48 In the
Napoleonic tradition that has influenced Canon law, conspiracy
tends to be viewed as participation in the commission of or
attempt to commit the agreed-upon crime. 9 Of late, with the
development of international criminal law, both European and
American principles of law and authority have been used to
determine culpability in devising the new internationalist norms.
Borrowing from Napoleonic and Canon law, the Rome Statute
143. Mens rea-intent-means that a person knowingly engages in conduct where they
mean to cause the consequence or are aware that the consequence will occur as a result of
their actions. See BLACK'S LAW DICrIONARY 825, 1006 (8th ed., 2004).
144. See id. at 826.
145. The reality is that where genocide is concerned, often the principle actor, the
person who carries out the murder lacks genocidal intent. Instead, the tendency is that
subordinates are incited by leaders who possess the intent to "destroy the group, in whole
or in part." The leader, as accomplice, possesses the intent required in article 6 of the
Rome Statute. Thus, according to international criminal law, it is likely that the said party
would be found culpable, despite the fact that the subordinate lacks special intent.
Therefore, the principle offenders would be guilty of murder, not genocide, because they
were unaware of genocidal intent. In an attempt to classify criminal action, the
prosecution must look for narrowly tailored conduct and the intended results of action.
See SCHABAS, supra note 34, at 29-30.
146. SCHABAS, supra note 34, at 38. The elements of the crime of genocide are: (a)
killing members of the group; (b) causing serious bodily or mental harm to members of the
group; (c) deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part; (d) imposing measures intended to prevent
births within the group; and (e) forcibly transferring children of the group to another
group. Rome Statute, supra note 35, at art. 6.
147. SCHABAS, supra note 34, at 103.
148. Id.
149. Id.
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requires an "action that commences execution by means of. a
substantial step.'. 5 In other words, it requires the commission of
an overt act as evidence of the conspiracy, but imposes no
requirement for the commission of the crime itself.'5' Yet, because
the architects of the Statute were most interested in linking
commanders to crimes committed by their subordinates, in proving
culpability the principle of command responsibility has been used
to establish culpability,
requiring proof of guilt "beyond a
1'52
doubt.'
reasonable
On the other hand, questions of liability that relate to
defending a crime seen as a political crime (Al Khuruj) varies in
various Nigerian Islamic juror circles. Unlike the application of
command responsibility in the Rome Statute for the ICC, in
Islamic Shari'a theories of culpability in various northern Nigerian
contexts, the orthodox reasoning tends to relate it to the obligation
and duty to protect Islam; orthodox approaches to guilt tend to be
based on a determination of intentionality.13 As we shall see
below, despite the religious roots of criminal law that shaped the
formation of international criminal law, the religious fields of
authority in both spheres of jurisprudence are politically different.
The difference, however, is not based on the false construct of
secularism and non-secularism. It is based on a difference in the
authority of law. That is, a cultural conception that the source of
Islamic law begins with the authority of the Prophet Muhammad
as the final Prophet of God, compared to the international law
alliances with the state and the role of the statute.
150. Rome Statute, supranote 35, at art. 25 (3) (f).
151. SCHABAS, supra note 34, at 105.
152. SCHABAS, supra note 34, at 103. However, in the absence of proof that actual
orders were given, the Statute outlines two approaches. The first undermines the common
law presumption of innocence by presuming that the commander ordered his/her
subordinate to commit the crimes. The second is to prosecute the commander not for
ordering the commission of the crime, but for negligence in failing to prevent it from
happening under the Rome Statute, Art. 28. Id.; see also Gurule, supra note 36, at 40-41.
153. This is derived from a range of orthodox interpretations in which the following
Qu'ranic verses were cited by Northern Nigerian jurors: "And fight in the way of Allah
against those who fight against you, but be not aggressive surely Allah loves not the
aggressors." QUR'AN, supra note 7, at 2:190; "And if they break their oaths after their
agreement and revile your religion, then fight the leaders of disbelief." QUR'AN, supra, at
9:12; see JACKSON, supranote 43, at 200-202 (discussing "intention").
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VI. REGIMES OF AUTHORITY: ISLAMIC CULPABILITY AND THE
CODIFICATION OF GENOCIDE
For millions of Muslims worldwide, the belief in Allah
informs cultural practices, as well as the structure of political
institutions, judiciaries, and the principles that inform everyday
notions of justice, duty, and obligations.'54 Among those who
recognize the authority of Islam, it is because they accept that
between 571 A.D. and his death in 632 A.D, the Prophet
Muhammad served as a conduit of Allah (God) by documenting
his principles in the Holy Qur'an. As such, the fundamental
principles depart from conceptions of the rights-bearing-citizen
whose duties are formulated in relation to the state. Instead, for
various members of Islamic faith communities, the Shari'a as a
form of Islamic law offers the possibility of adopting particular
tenets of Islamic faith as the basis for governance. In Northern
Nigerian contexts, like the majority of Islamic states
internationally, it is the Shari'a criminal codes, principally
informed by the Qur'an and varied interpretations of it, that
provides the legal rules by which Muslims are expected to live.56
These are seen as being laid down in one of the Prophet
Muhammad's hadith.157 As such, belief in the acceptance of God
requires the acceptance of the duties and obligations revealed in
Muhammad's message. 158
The fundamental duties, practices, and beliefs are understood
through what is referred to as the "five pillars of Islam.""' They
are: (1) the shahada, the profession of faith through testimony
declaring, "there is no God but Allah and... Muhammad is the
messenger of Allah"; (2) salat, the performance of the ritual prayer
conducted at five appointed times of the day-dawn, midday,
afternoon, sunset, and evening; (3) zakat, the mandatory donation
to charity comes with an obligation to share with the less
fortunate; (4) fasting during the month of Ramadan with the goal
154. Bernard Lewis, The Faith and the Faithful, in THE WORLD OF ISLAM 25 (Bernard
Lewis ed., 1992); OXFORD DICTIONARY OF ISLAM, supra note 6, at 211-12.
155. Lewis, supra note 9, at 11-12.
156. Id. at 25; see Laws of the Federation of Nigeria, Criminal Code Act, Ch. 77 (1990),
available at http://www.nigeria-law.org/Criminal%20Code%2OAct-PartV.htm (revised
edition).
157. Lewis, supra note 9, at 25,
158. Id.
159. Id. at 26; Vincent J. Cornell, Fruit of the Tree of Knowledge, in The Oxford
History of Islam 77 (John L. Esposito ed., Oxford Univ. Press) (1999).
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of abstaining from eating, drinking, and engaging in sexual activity;
and (5) hajj, the obligation of making the pilgrimage to Mecca at
least once in a lifetime. And though these five pillars represent
religious obligations of Islamic practice as well as outline the key
tenets in accordance with which human relationships with "God"
are sustained, they do not delineate a comprehensive list of
spiritual duties, beliefs, and standards of conduct that are
required.'6' Instead, there exists yet another comprehensive list of
obligations that the Muslim faithful are expected to undertake in
order to show their obedience to God. These obligations are both
spiritual and legal.
The spiritual obligations reflect attitudes and states of faith;
the legal obligations reflect rules of conduct and codes of law that
require a manifestation of the proper spiritual attitude exhibited
through practice. The latter outline injunctions for social justice,
rules governing daily life, and the means for gaining individual
peace and dignity. The list of laws with enforcement powers is far
more limited. In this light, many obligations are actually spiritual
and moral obligations but, in legal terms, they represent codes of
social action and rules of conduct according to which a Muslim is
expected to live.
In questioning whether political dissidents should be
distinguished from "common criminals," Khaled Abou El Fadl
outlines three sets of moral and spiritual obligations. The first is a
set of moral and spiritual obligations that reflect the intrinsic right
and duty of the Islamic faithful to serve Allah and the community.
It represents, (1) duties of action that he suggests might be seen as
legal duties but as I explain, are actually moral and spiritual duties
held by various Muslims enacted politically to protect the name of
the Prophet; (2) the call on the faithful to form alliances with
goodness and protest evil; and (3) the duty to obey Allah's
orders." Abou El Fadl details the invocation of all three Islamic
core principles in accordance with which legal and moral duties are
popularly constituted. 63 These duties are based not only on a
160. Cornell, supra note 159, at 77-87; see also Lewis, supra note 9, at 25. OXFORD
DICTIONARY OF ISLAM, supra note 6, at 286, 275, 345, 103-04 (defining shahada, salat,
zakah, and hajj, respectively).
161. See Cornell, supra note 159, at 87. For instance, in addition to the "five pillars of
Islam," there are also "six pillars of faith." Id.
162. Abou El Fadl, supra note 43, at 12.
163. See id. at 10-12.
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reverence for the sacredness of life alone, but also refer to the
mystical continuity of life, even in "death" (life after death)."
Popular Nigerian Islamic beliefs often locate the mortality of
the body as merely a stage of life itself. 6 1 In this regard, the first
principle of duty points to the importance of the allegiance to God
and is expected to be exercised in relation to God first and the
state second. The more orthodox interpretation, however, involves
a call to Muslims to obey and support the ruler and places a
premium on the sanctity of unity and the duty of implementing
and protecting Islamic order, including the call to "kill contesters
to the ruler's power."'" Consistent with this principle are
responsibilities to a Supreme Being. As the Prophet said, "if
people see an oppressor and they do not enjoin him [or her] then
God will punish all of them.' ' 167 This view of duty to a Supreme
antagonizes fundamental principles of the democratically acting
liberal subject, who is endowed by the state with positive and
negative rights. Instead, it focuses on how the individual is to be
judged (or punished because of inactivity as lack of resistance).
Which is to say that one interpretation is that the subject who
chooses not to exercise the obligation to act is in violation of their
moral allegiance to God.
The second principle, to form alliances with goodness and
protest evil, places a premium on the individual's duty to enjoin
good and forbid evil." The third principle, to obey God's orders, is
related to the second principle in that it also points to duties of
obedience.'69 Following the Qur'an and Professor Abou El Fadl's
explication, if devotees are engaged in an argument, the first
course of action is to:
[M]ake ye peace between them: but if one of them
transgresses beyond bounds against the other, then fight
ye (all) against the other, then fight ye (all) against the
one that transgresses until it complies with the command
of God. But if it complies, then make peace between them
164. This is the basic principle of everlasting life of the soul after the death of the body
found in not only Islam but also Christianity, Hinduism, and Buddhism. See LIFE AFTER
DEATH IN WORLD RELIGIONS (Harold Coward, ed., Orbis books 1997).
165. Here the modern concept of death and one strand of Islamic concepts of death
can be argued as being divergent.
166. Abou El Fadl, supra note 43, at 10.
167. Id. at 11.
168. Id. at 11.
169. Abou El Fadl, supra note 43, at 11.
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with justice, and be fair: For God loves those who are fair
(and just). The believers are but a single Brotherhood: so
make peace and reconciliation between your two
(contending) brothers. And fear God, that ye may receive
mercy."
This requirement of obedience and retribution highlights the
contingency of peace and the primacy of godly authority.
Abou El Fadl details the underlying philosophies that shape
these principles of enjoining good and forbidding evil through
obedienceY.7 ' Examining disjunctures in understanding, as they
relate to duty/obligation and ultimately to notions of culpability,
he argues that these principles establish the rules of conduct of the
Islamic faithful.17 ' But when the focus of rights and justice move
from that of individual rights, freedoms, and entitlements, to that
of the duties of the individual and their moral and/or legal
obligation to God and community, the basis for understanding
what constitutes "legitimate" action and "just" punishment is
radically called into question.
By introducing the competition over religious and legal
domains Abou El Fadl then turns to the concept of Al Khuruj, to
draw out the difference in calculating intention when the act is
seen as a form of moral obligation, a form of defense.'73 As
defined, it is "an assertive act of resistance against the head of the
state" or a powerful official or actor, but usefully understood in
relation to a call to war by a Mufti or Imam endowed with the
authority to declare a fatwa, and to do so in order to implement
the duty of the faithful to protect the leader against "enemies" of
Islam. 174 Though narrowly tailored as an act of demonstrated
obedience to the Godly "creator," it rewards and excuses
rebellions against injustice that befalls people. 7 ' Abou El Fadl
explores how it represents a nexus between the offense and the
uprising, as the leader/government is called upon to respond to
such pressure by calling on citizens to defend Islamic
170. Id. at 11 (quoting QUR'AN at 49:9-10).
171. Id. at 12.
172. Id. at 27 ("The standards of the Islamic faith require that those who defy authority
because they believe that this is what their faith demands of them must be treated with
indulgence.").
173. Id. at 13-15.
174. Id. at 13.
175. Id. at 14-15.
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governance. 76 By illustrating how the orthodox rationale locates
the Islamic brotherhood as having a duty to aid and support
potential dissenters, Abou El Fadl suggests that that duty
articulates an obligation of the faithful to support the Prophet.7 '
As the fulfillment of the duty to God is measured in relation to the
consequent action, here, it is the motivation of the act that is
measured in relation to the action. To explore this as a theory of
Islamic legal intent means that one must recognize that it is
predicated upon sources of self-that is Charles Taylor's
articulation of some forms of knowledge as unknowable by human
kind. 1
Therefore, the philosophy of culpability in more
fundamentalist Islamic interpretations of the Nigerian Shari'a is
determined by whether the violence that resulted in death was
caused by a person (free Muslim), not their leader, who is sane
(akil) and of age.79 Culpability is derived from notions of
deliberate intent, quasi-deliberate intent, and indirect causation.
As such, that person would be seen as responsible (mukallaf) for
his/her actions and, therefore, culpable of "deliberate intent."'
However, if adjudicated in a given Nigerian Shari'a court,
culpability would be bound to intention. This is because the
believer would likely be absolved of criminal responsibility if he or
she were acting out of religious obligation.' Such a notion of
intention is determined by attention to both the act and to the
moral obligation of believers to protect Islam. Where violence is
deemed necessary by some, as when a fatwa is called, the relevant
context shifts from that of peacetime to that of wartime, thereby
making intention relevant in so far as it relates to the ability of the
faithful to engage in obligatory action."
176.
177.
178.
Acts, 8
Id. at 15.
Id. at 27.
See Brinkley Messick, Indexing the Self- Intent and Expression in Islamic Legal
ISLAMIC L. AND SOC'Y 151, (2001); see generally CHARLES TAYLOR, SOURCES OF
THE SELF: THE MAKING OF THE MODERN IDENTITY (Harvard Univ. Press 1989)
(discussing and defining the "modern identity").
179.
Research findings. Kamari Maxine Clarke, Abuja, Nigeria (Dec. 2002) (on file
with author).
180.
Ahmad Fathi Bahnassi, Criminal Responsibility in Islamic Law, in THE ISLAMIC
CRIMINAL JUSTICE SYSTEM, at 176 (M. Cherif Bassiouni, ed. 1982).
181. Research by Kamari Maxine Clarke, Abuja, Nigeria (Dec. 2002) (on file with
author).
182. OXFORD DICTIONARY OF ISLAM, supra note 6, at 85. A fatwa describes an
authoritative legal interpretation by a mufti or religious jurist that responds to a question
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In following this logic one may surmise that the contrasts
between Shari'a Islamic movements and political doctrines of
international human rights are stark. And though I began by
exploring the ways that genocidal violence may be differently
legitimatized and codified within varied formulations of law and
religion, the underlying goal is to demonstrate why comparisons of
"intent" in different legal fields are insufficient for explaining
complexities of power. This is because relativist approaches to
moral and philosophical questions are limited in practical
approaches to understanding how and why people act or do not act
and what their action means. A more practical engagement must
deal with the empirical spheres of meaning in relation to the place
of agency in either the compliance or refusal of others to
participate in the reproduction of religious or ethnic strife. For at
the heart of such theories of law are totalizing conceptions within
which people interpret, judge and, in the end, create obligations
from which to act. These obligations shape the domains of
authority from which people make complex determinations in
both moral and legal terms. As such, the problem with the
conflation of a spiritually driven moral and legal obligation, and
the processes of interpretation and evaluation through which
people choose to act is that it collapses two fields of legal authority
which are differently related because they draw from varied
conceptual fields but similar in that they are shaped by related
genealogies of religious roots. Given this, it is important to
distinguish the role of human agency in mobilizing action
responsive to moral or legal obligations. Therefore, in the absence
of a hegemonic Islamic state which may enforce sanctions against
inaction, it is critical to recognize the role that human agency plays
in the mobilization of actions that respond to moral or legal
obligations.
For instance, under the direction of a fatwa, the reality that
some might identify some forms of violence as legitimate acts
because they respond to legal and moral obligations of the Islamic
faithful to defend one's leader'" highlights why, in theory, the
posed by an individual or court of law. Id. It provides the basis for court decision or
government action of issues not covered by the fiqh literature and, therefore, neither
binding, nor enforceable. Id. Often the authority of the fatwa is determined by the mufti's
level of education and status within the community. Id.
183. See M.M. Slaughter, Essay, The Salman Rushdie Affair: Apostasy, Honor, and
Freedom of Speech, 79 VA. L. REV. 153, 173-76 (1993). Regarding the legitimization of
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violence that erupted in Nigeria and led to the relocation of the
Miss World pageant was not seen by the more orthodox Nigerian
practitioners as punishable under the Shari'a. Instead, in the
context of the calling of a fatwa in Northern Nigeria, the argument
follows that the acting dissident may not be seen as culpable if they
responded to the legal obligation and duty to God to maintain the
integrity of Islam. Here we see why the violence in Nigeria
described in the opening passage was viewed by various facets of
the Nigerian Islamic faithful as compensatory, retributive, and was,
therefore, celebrated amongst various Islamic adherents. For
some, it was enacted as a quasi-legal political obligation, thereby
explaining why the outbreak that followed the calls for jihad in the
Mosque-directed against the organizers of the pageant, the
journalist, Isioma Daniel, and the newspaper office-was seen as
both the intentional fulfillment of a moral, political, and legal duty,
as well as a form of retribution, and therefore, an "appropriate"
response.
However, it is only empirical approaches to relativism that
can produce questions concerning the politics of power, agency,
and intentionality. And yet, intentionality, understood in relation
to fulfilling legal and moral obligations, is critical for distinguishing
political acts of legal obligation from those actions that are
deemed wrongful criminal acts in the common law, canon law, and
the criminal law of the Rome Statute. In these various canons of
law, unless a declaration of just war is called, neither the acting
dissident nor the commander is likely to be absolved of crimes
committed against civilians." Instead, interpreters of the Rome
Statute, such as the Chief Independent Prosecutor and related
officials for member states, are likely to judge the terms of jihad as
illegitimate, thereby establishing the acts committed as crimes in
the context of peace and not war.185 As such, in relation to charges
of the crime of genocide in the Rome Statute, culpability would be
measured in relation to the joining of mens rea and actus reus; the
legal question to be posed would be whether the offender planned
acts of violence, see D. RICHES, THE ANTHROPOLOGY OF VIOLENCE (1986).
184. See, e.g., Rome Statute, supra note 35, at arts. 27-28.
185. See Vincent-Joel Proulx, Rethinking the Jurisdictionof the International Criminal
Court in the Post-September 11th Era: Should Acts of Terrorism Qualify as Crimes Against
Humanity?, 19 AM. U. INT'L L. REV. 1009, 1083-84 (2004) (arguing that the 9/11 attacks
directed against a "civilian population" should qualify as crimes against humanity
pursuant to Article 7 of the Rome Statute).
314
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to promote the uprising with the intention of killing.1" The next set
of inquiries would explore whether the acts were carried out with
the specific intent of destroying a particular group. If the acts were
not committed with intent and knowledge18" of the commander,
they might be prosecuted for ordering the crime or, in the absence
of the mental elements they might be criminally liable for
negligence in failing to prevent those under their command from
carrying out criminal acts." In relation to individual culpability,
the distinction to be made would be based on the recognition of
the root principles that shape the elements of the crime of
genocide outlined in the Rome Statute, for which the specific
intent to kill a religious group is one of the elements of the crime
of homicide punishable under the genocide law. 9
In the case of the violence of Islamic Shari'a and that of the
secular state, both the institutional organization and spheres of
authority are part of various forms of violence structured in
widespread relations of inequality-from the national state to the
intricacies of the power of the post-colonial state to Islamic
religious organizations that locate the power of obligation and
duty to an unknowable God. Each produces and deploys violence
in different ways, but the key difference is in how we understand
inequality not only in relation to unequal targets of crime, but also
in relation to the constructed production of illegitimacy of the
Shari'a and its forms of crime in different spheres of power. In
other words, the inequality of power between liberal, Western
democracies and non-Western states in the international humanrights regime means Western democracies, and international
institutions, are able to enforce their own moral, ethical, and
political frameworks on other states using extreme violence when
they deem its use necessary. That is, liberal regimes use violence to
provide rationales for the laws they make and to assure the
conditions for their enforcement. Thus, liberalism's violence lies in
its key tenet of universality, which can be enforced by deploying
violence when other means do not suffice, because such is made
possible by the vast power differentials among states. Within
states, differentials in the power among segments of a population
186. SCHABAS, supra note 34, at 280.
187. SCHABAS, supra note 34, at 214 (defining knowledge as awareness that a
circumstance exists, or that a consequence will occur, in the ordinary course of events).
188. SCHABAS, supra note 34, at 213.
189. See Elements of Crimes, art. 6(a) (3), in SCHABAS, supra note 34, at 280.
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also produce similar potential for deploying violence in ways a
state conjoins the production of tenets for rationalizing rights in
the making of laws. Thus the modern, secular-state framework,
and the international human-rights regime, functions along a
continuum where "traditionalist" Shari'a duties of jihad or khuruj
are pathologized, religion-based violence (such as that termed
"terrorist attacks") are seen as barbaric, whereas the violence of
the modern secular state, its calls to war and ability to declare just
war legitimately are normalized, making it non-barbaric that
people should be killed in wars where the goal can be said to be
the "spread of democracy."
I end by suggesting that we articulate relativist principles with
empirical ends through a rethinking of the state in relation to
religious institutions and their relative spheres of international
institutional power and logic. Whether the statecraft, new
independent institutions or religious organizations are engaged in
various articulations of governance, it is important to recognize
how state functionaries empower international institutions, and
how this is similar to that of religious functionaries who empower
transnational and regional religious networks. Despite this
methodological relation, the concepts of secularism and that of
religion have been differently legitimatized in liberal democracies
worldwide, and have held authority differently in unequal relations
of power. However, despite the religiosity of "secularism" in the
international realm, the UN Declaration presumes a national and
international convergence of perspectives on social and human
justice under the rule of law for which the treaty increasingly gives
substance as the rational voice of the modern state. As such, the
violence of modern secularism, its religious roots notwithstanding,
call for a radical rethinking of epistemological relativism by
highlighting questions about domination and power within
multiple domains. The answers posed by these questions will be
improved by analyses that recognize the aspect of power that is
attained by the law-making authority assumed by states within and
as a consequence of the international human-rights frameworks.
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VII. GENEALOGIES OF SECULARISM AND THE POLITICS OF
CONSTITUTIVE POWER
The classification of particular actions as criminal actions, e.g.,
genocide, is as political as it is cultural. Classificatory acts
represent the authority of particular norms to be represented as
legitimate, always supplying a moral dimension that derives from
them. As such, the norms that shape the crime of genocide do not
hold power because they represent the democratically derived
social contract. They hold power because, in keeping with
revolutions of the West, such as that of France and America which
absolved themselves from religious persecution or the inheritance
of social standing, these twentieth century legal norms represent a
new moral dimension-the human rights treat as the new social
contract of Western modernity.
Through treaty doctrine, and legal and economic authority
that reinforce particular conceptions of international obligations
and responsibilities, such shared interests are embedded in the
enforcement of the duties of the state and protection of the
individual. For although the "rights" and forms of "individual
autonomy" enunciated in the Rome Statute for the ICC identify
human universality as the scope of entitlements, those rights are
more restricted than state entitlements in that they are interpreted
as rights that citizens hold as protections against their own
governments." For ultimately the authority of international law is
an extension of the authority of the state- which rights are
enacted.191 As such, international criminal law is increasingly
operating within a New International Order; that is, it is always in
tension with the jurisdiction of any one state. Like Islamic legal
questions of jurisdiction, it continues to call into the question the
basis for legal norms, obligations, and the duties of its
constituency.
With the formation of the legal concept of the person and the
state as the realm of authority propelling the development of
190. See Rome Statute, supra note 35, at art. 1.
191. MALCOLM N. SHAW, INTERNATIONAL LAW 5-6 (5th ed., Cambridge Press, 2003).
For example, compared with previous tribunals that have held primary or concurrent
jurisdiction, the ICC follows the principle of complementarity, according to which national
courts hold jurisdictional primacy, thus, enabling the ICC to take jurisdiction if a state is
unable or unwilling to investigate an allegation which the Prosecutor for the ICC identifies
as a possible violation consistent with crimes of the type court is authorized to pursue. See
Rome Statute, supra note 35, at art. 1.
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transnational criminal justice and human rights, liberal
conceptions of criminal justice were rooted in the tradition of
liberal idealist thought from which the League of Nations was
established in 1920." Although it failed in carrying out its ultimate
mission, The League succeeded in the development of a new
internationalist vision with moral underpinnings that shaped the
new institution-the United Nations." 3 And with moral
underpinnings that reinforce the legitimacy of individual "rights"
and the inherent dignity of human kind, The Universal
Declaration of Human Rights (UDHR) begins by asserting the
individuality, "inherent dignity and ... the equal and inalienable
rights of all members of the human family" in relation to the
state. '4 It insists that unless human rights are protected by the.
ROL, subjects will be "compelled to have recourse, as a last resort,
to rebellion against tyranny and oppression. ' ' 95
Today, the United Nations Charter outlines three possible
criteria under which the use of force is seen as legitimate. First,
under Chapter VII of the Charter through authorization of the
United Nations Security Council;' second, if there is an actual or
192. The League of Nations was established by the Covenant of the League of Nations
in the Treaty of Versailles and other World War I peace treaties. See Covenant of the
League of Nations in Treaty of Versailles, June 28, 1919, Part I, 225 Consol. T.S. 188,
available at http://www.yale.edu/lawweb/avalon/leagcov.htm. The Covenant consisted of
26 articles. Articles 1 through 7 concerned organization, providing for an "Assembly,"
composed of all member nations; a "Council," whose original composition included Great
Britain, France, Italy, Japan, and later Germany and the Soviet Union, and of four other,
nonpermanent members and a secretariat. The Assembly and the Council were
empowered in Article 3 to discuss "any matter within the sphere of action of the League
or affecting the peace of the world." Covenant of the League of Nations, art. 3, June 28,
1919,225 Consol. T.S. 188.
193.
See STEPHEN C. SCHLESINGER, ACT OF CREATION: THE FOUNDING OF THE
UNITED NATIONS 25-28 (Westview Press, 2003); SHAW, supra note 108, at 30; History of
the League of Nations, The United Nations Office at Geneva, http://www.unog.ch (follow
"League of Nations" hyperlink) ("[T]he legacy of the League of Nations ...appears
). On January 1, 1942, twentyclearly in a number of principles stated by the Charter ....
six state representatives, including United States President Franklin D. Roosevelt, signed
the Declaration for the newly formed United Nations. DAVID WEISSBRODT ET AL.,
INTERNATIONAL HUMAN RIGHTS: LAW, POLICY, AND PROCESS 6-7 (Anderson
Publishing Co., 3d ed., 2001). In the midst of a second world war, the United Nations
Charter was signed by representatives of fifty states on June 26, 1945, and ratified by those
countries on October 24, 1945. History of the League of Nations, The United Nations
Office at Geneva, http://www.unog.ch (follow "League of Nations" hyperlink).
194. Universal Declaration of Human Rights, preamble, G.A. Res. 217A, at 71, U.N.
GAOR, 3d Sess., 1st plen. mtg., U.N. Doc A/810 (Dec. 12,1948).
195. Id.
196. U.N. Charter arts. 39-50.
318
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imminent threat of an armed attack and it is used in self-defense or
collective self-defense;' and third, "to avert [an] overwhelming
humanitarian catastrophe."'98 These three components reflect
contemporary norms for the establishment of criteria for
determining the legitimate use of violence by states and their
bodies.9 In the absence of these state-based determinants, such
forms of force were classified as tyranny and equated as an
intolerable infringement of state rulers, and looked down on by
human rights activists as law above positive law. Tyranny
legitimizes rebellion only when it is seen as an act aiming to
restore state sovereignty, not when it presents itself as a religious
group's response to a violation of "unjust" and "immoral"
behavior. As such, what is lawful also may be intolerable
suggesting that nothing which contravenes state power or human
rights can be legitimately lawful. In other words, the UDHR,
which gave form to an international vision of human rights,
presumes that a convergence will obtain between universal
humanism and state-enforced norms.2' This remains an unresolved
tension between universal humanism and the power of the state to
apply and to maintain the law by equating secularism with Rule of
Law, and justice with the modern, liberal codifications by which
violence is to be interpreted, and the punishment of violators
authorized. In that regard, it is the voice of the treaty, recognized
through the authority of the law that holds the force of legitimacy.
As we can see, this legitimacy represents a mystical authority of
legal force that operates alongside national state authority.
Since 1989, we have witnessed a drastic increase in the
number of national constitutions being re-written, treaties signed
against violence, genocide, and war crimes, and a widespread shift
197. U.N. Charter art. 51.
198. British Attorney General's Advice to Prime Minister Blair on the Legality of the
Iraq War, para. 2 (Mar. 7, 2003), http://www.number-10.gov.uk/files/pdf/
Iraq%20Resolution%201441.pdf. The use of force to overcome a humanitarian
catastrophe represents the development of an exceptional basis for the use of force. Id. at
para. 4. This was the justification for the Kosovo crisis of the 1990s, as well as the
justification for the No-Fly Zones. Id.
199. See Id. However, in highlighting that which appears outside of the norm for
legitimate violence, the report makes clear that self-defense is defined as "an actual or
imminent threat of an armed attack." Id. at para. 3. In other words, the use of force must
be seen as necessary and deployed as a means of averting an attack. In this way it must
represent a proportionate response in the context of imminent danger. Id.
200. Universal Declaration of Human Rights, preamble, G.A. Res. 217A, at 71, U.N.
GAOR, 3d Sess., 1st plen. mtg., U.N. Doc A/810 (Dec. 12, 1948).
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in the management of criminal jurisdiction. These transformations
have led to gaps in the enforcement of new legal principles being
negotiated between states and international institutions."'
Although such developments may suggest that territoriality and
state power are no longer significant in this age of globalization
and international membership, in the realm of international
criminal law, various transformations have led to the development
of an independent International Criminal Court in which
territoriality and citizenship continue to form the basis for the
jurisdiction to pursue a case.' For in modern liberal democracies
it is the authority of the state-the statecraft-and its deployment
of law and the economy, along with "self discipline" and
"participation," that characterizes the political legitimacy of the
Rule of Law. Through the creation of national and international
techniques for the dual management of crimes such as genocide,
national governments, through the statecraft, continue to
participate in various techniques of international management,
thereby maintaining hegemony over the classification of various
forms of violence.
Similarly, the Shari'a, as a religious articulation of a related
legal order, stands in for the greater assertions of state power-to
act, protect, and kill legitimately, within relevant spheres of
authorial power. And unfortunately, the practices of Islamic
criminal Shari'a in Northern Nigeria, are often viewed through a
lens which envisions what is unlawful as that which is judged from
the perspectives of North American and European secular states,
and ought not to be lawful. And though I am in no way advocating
the legitimacy of any form of violence, the ways that both human
rights infused international/state regimes-like overtly religious
regimes-are not free of social constructions of justice, and
criminal action is epistemologically constituted and justified.
National state, international, and religious rules of law
maintain core principles that operate within distinct regimes of
authority which, though they are made to appear distinct, are
actually inseparable, sharing in the regulation, not the elimination,
of violence. These ideals reflect the types of authority we value,
the motivations we agree are acceptable, and the force of law
201. MICHAEL REISMAN, ET AL.,
PERSPECTIVE, (2d. ed.) (2004).
INTERNATIONAL
202. See Rome Statute, supra note 35, at art. 12.
LAW
IN
CONTEMPORARY
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which does not necessarily reflect empirical or social truths, but
which exists through the mystical foundations of state
enforcement. Thus, in the case of human rights and its related
norms derived from international law, it is the statute that
establishes its authority. And the modern nation-state continues to
claim the power to exercise violence, and to do so in relation to the
Rule of Law. It reflects the violence of legal norms, their social
meanings, and the relations of power and authority within which
they are embedded.
Meanings of genocide, therefore, must involve not only
understanding varying cultural meanings of intention around
homicide, but also empirically distinct methodological questions
regarding an understanding of the genealogies of the Rule of Law
and the force of the statecraft as constitutive of the ways in which
subjects engaged in neo-liberal democracies in the West
rationalize action. The conceptual hierarchies, which are present in
the exercise of individual/Muslim obligations to the authority of
the religious ruler first, and state-based democratic principles
second, raise questions concerning the relationship between
concepts, theory, and practice, as it also calls into question
differences between exercising the obligation and duty to act and
managing that duty in relation to other implications and
constraints. In the end, balancing both the spheres of authority
which shape religious and legal knowledge, and the domain of
interpretive agency within which people make determinations,
allows us to return to empirical relativism as a way to document
the relations of power among international, national, and
religiously-inspired regimes of knowledge and power. This
approach allows us to rethink the philosophies of obligation in
terms of the contingences of power; detailing its deployment
represents the empirical work that can be most useful analytically.
For though some states are more successful than others in
enforcing their determinants of legitimate violence, in relation to
widespread democratic principles, all but a few have continued to
maintain power through the hegemony of statehood alone. And
this is not just because both share a genealogy of religiosity. It is
because they have drawn their force from the myth of sovereign
authority and its sacred political forms that are being maintained
through an illusion of secularism, the logic of legal sanctity, and
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the force of military and economic power. For, it is the
expanding alliance between the state and international/global
institutions and their fundamentally religious genealogies that defy
comparison with transnational Islamic religious rule.
The merger of the histories of religious rationality and the
regimes of power that legitimatize certain forms of legal
classifications and their punishments have given rise to the need to
go beyond comparative reason as the basis for understanding the
modernity of national and international power. The basic
definition of secularism describes a separation of organized
religion from organized political power inspired by a specific set of
values.2 4 In the early modern period, Jean Jacques Rousseau first
put in place a model for the place of government and law in
society. In doing so, religion was relegated to the spheres of the
social-beyond the terrain of political action. °6 Much of 19th
century positivist thought was also directed towards the hoped for
replacement of religion by science." The popular positivist
thought was heralded by Auguste Comte in which he espoused an
evolutionary scheme that presumed that the development of the
modern nation state would need to evolve from societies engaged
in fetishism to those more advanced than those that used the
rationality of science."0 Arguing for the historical inevitability of it,
Marxists referred to such developments as the increasing
"secularization" of thought.
However, the definitive text on the underpinnings of religious
norms in capitalist society was Max Weber's Protestant Ethic and
the Spirit of Capitalism in which he evaded the age-old debates
about explicit religiosity and, instead, spoke of the fundamental
tenets of Protestantism that shaped the cultural logics of
capitalism.2 ' Accordingly, in the West, the foundations of the
modern state were structured around capitalist exchange and
203. See TALAL ASAD, FORMATIONS OF THE SECULAR:
MODERNITY (2003).
CHRISTIANITY, ISLAM,
204. ASAD, supra note 103, at 1.
205.
See Jean Jacques Rousseau, On the Social Contract, in THEORIES OF SOCIETY
VOL 1. 119-25 (Talcott Parsons, et al. eds. 1965).
206. See id.
207. See ASAD,supra note 103, at23.
208. See August Comte, The Theological Stage, in THEORIES OF SOCIETY VOL. 1 646-
56 (Talcott Parsons, et al. eds. 1965).
209.
See MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM 95-
154 (Talcott Parsons trans. 2001).
322
Loy. L.A. Int'l & Comp. L Rev.
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conceptions of value that privileged the cultural logics of JudeoChristianity."' As such, Weber demonstrated that religious logic
was fundamental to the formation of modern capitalist life and its
power was in its ability to render itself invisible, yet continue to
reproduce itself through daily norms of capitalist exchange. In
following Weber, over the past decade, the increased presence of
religion in public life has led scholars writing about the new face of
state power to examine the increasingly overt relationship between
religious faith and legal governance.212 For in the end, few models
have succeeded in addressing the ongoing presence of religion and
religiosity in the socio-political sphere. Rather, in implicit and
explicit terms, a fusion of religious, moral, and political
conceptions have prevailed and constituted the basis for a political
order that is made possible through the economy, the law, and the
statecraft, but has managed to represent itself as secular.
Max Weber wrote about the disenchantment of the world
because of the inroads of modern rationalist ways into traditional
social arrangements.2 13 These eroded the sense of awe and respect
for sacred institutions and beliefs and set the groundwork for
understanding the modernization of modern institutions.
However, it was Talcott Parsons who had used to the idea of
"modernization" as a lens through which to view all developments
in non-Western societies. 2 He articulated -increasing forms of
secularism as the withdrawal of religious discourse from the public
sphere.
In an attempt to disrupt the relationship between religion and
the secular, Jurgen Habermas argued that there existed a division
between political society and civil society and that religion should
not play a role in political society.216 For Habermas, it was the
realm of moral and public formulations of religion that he felt
should be outmoded. 217 But, as Weber has demonstrated, the
210.
211.
See id. at 3-12.
See id.
212. See ASAD, supra note 103, at 23; Rosalind I.J. Hackett, Symposium, Rethinking
the Role of Religion in Changing Public Spheres: Some Comparative Perspectives, 2005
B.Y.U.L. REV. 659 (2005).
213. See WEBER, supra note 209, at 1063-65.
214. See id.
215.
216.
See, e.g., TALCOTT PARSONS, THE STRUcTURE OF SOCIAL ACTION (1968).
See Jurgen Habermas, Religion in the Public Sphere, http://www.sandiego.edu/pdf/
pdfjlibrary/habermaslecture03l105_c939cceb2ab087bdfc6df291ec0fc3fa.pdf.
217. See Id.
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formation of secularism involved the formation of cultural values
that were deeply embedded in Judeo-Christian religious
sanction." ' This influence of religious principles shaped the
organization of society, the work ethic, its value, the basis for what
constituted a crime and, therefore, its punishment, as well as the
norms and values enforcing their legitimacy."' Conceptions of the
individual, and thus, notions of the human, were aligned with the
state's management of and entitlement to the surveillance of the
body.
Conceptions of the human and human responsibilities to
nation-states over the perceived authority of "God" vary across
cultural groups. There exist a range of debates today on what it
means to be "human" and to whom rights should be attached. The
notion of the intrinsic worth of the individual as "human," in
which human life, alone, is sacred, is a social construct and has its
roots in the fundamental principle of liberalism. Similarly, the
notion that humans are "rights bearers" and what counts are their
rights in the modern temporal present can be traced to a range of
European countries but is not generally acceptable worldwide.
In 1215, the Magna Carta established rights as a concession
from King John to the Barons of England.2 ' ° The King granted to
them various liberties such as the right to wardship and inheritance
so long as they owed him a duty.21 This political negotiation
established a social contract between rulers and subjects and
established legal terms for the protection of rights, as derived from
a contract. By the middle ages in Europe, a notion of rights was
shaped by particular moral standards that were, in theory,
218. See WEBER, supra note 21, at 3-12.
219. See, e.g., Heather L. Milligan, Comment, The Influence of Religion and Morality
Legislation on the Interpretation of Second-Parent Adoption Statutes: Are the California
Courts Establishing a Religion?, 39 CAL. W. L. REV. 137, 146 (2002) ("[America] was
founded on a specific set of Judeo-Christian beliefs and many Americans, including most
judges, continue to believe in them today."); Matthew P. Previn, Note, Assisted Suicide
and Religion: Conflicting Conceptions of the Sanctity of Human Life, 84 GEO. L.J. 589, 607
(1996) ("The Judeo-Christian conception of the sanctity of life is so ingrained in the social,
cultural, and legal fabric of American life that the conception seems less a reflection of
religious beliefs than of traditional values.").
220. Magna Carta, preamble, para. 1 (1215), reprinted in A.E. DICK HOWARD,
MAGNA CARTA: TEXT & COMMENTARY (1998).
221. Id. at paras. 2, 4 (1215).
222. See A.E. DICK HOWARD, MAGNA CARTA: TEXT & COMMENTARY 7-8, 23
(1998).
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articulated as universal, and based on principles of natural law.2"
These principles of natural law were not contingent on political
concessions. " Rather, it was derived from the idea that humanity
is sacred and should be protected.2 5 Much of the genealogies of
universal rights in the literature begin in the Middle Ages and
trace the idea of natural law to a theory of rights that identifies
individual rights as the sacred and foundational basis for human
kind.226 With the development of modern conceptions of natural
law, philosophers such as Hugo Grotius, Thomas Hobbes, and
John Locke expanded on these standards of rights and privileges
and developed the idea that individuals have a general duty to
adhere to moral standards and that governments have an
obligation to concede to basic concessions of the social contact.
In various regions of Europe the development of the Liberal
Position on Rights established two basic principles: first, that
human beings possess rights to life, liberty, the secure possession
of property, and the exercise of free speech-all inalienable and
unconditional. 27 Second, that the central role of government is to
protect these rights. 2' Therefore, political institutions were to be
judged on their achievement of this function. In 1789, the French
Revolution led to the widening of this concept with the
Declaration of the Rights of Man and the Citizen.2 9 Shaped by
British and French colonialism in the 17th and 18th centuries, what
would become the United States enshrined such rights in the 1791
Bill of Rights.23
Though such declarations employed universal language, up
until the mid-twentieth century, the notion of "rights" were only
associated with domestic issues. They rested on the nation state as
the source of sovereignty2 31 and took for granted the limited
223.
Talcott Parsons, The General Interpretation of Action, in THEORIES OF SOCIETY
VOL. 1 87 (Talcott Parsons et al. eds., 1965).
224. Id. at 87.
225. Id.
226. Id.
227. Chris Brown, Human Rights, in THE GLOBALIZATION OF WORLD POLITICS, at
693-94.
228. Id. at 693-94.
229. Id. at 694; see Declaration des droits de l'Homme et du citoyen [Declaration of
the Rights of Man and of the Citizen] (1789) [hereinafter Declaration of the Rights of
Man and of the Citizen]. The Declaration is incorporated into France's current
constitution. Constitution de 1958 pmb. (Fr.).
230. See U.S. CONST. amends. I-X.
231. See Declaration of the Rights of Man and of the Citizen, supra note 229, art. 3.
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Internationalizingthe Statecraft
application of such rights and responsibilities. However, in the
second half of the twentieth century and into the present, the
development of international relations and the network of states
engaged in the international law regime have radicalized the basis
for the attainment of rights. As a result, predominant principles of
rights are secured by the notion of a common humanity in which,
by virtue of being "human," individuals possess rights.
Prior to the twentieth century, international lawtraditionally represented as a set of rules agreed upon by countries
and meant to govern the relations among them-asserted
principles of sovereignty that were embedded in the state."
However, in the twentieth century it took a different turn to
address questions of international concern. 3 By extension,
international criminal law developed as a twentieth century
phenomenon, along with the idea of a permanent international
criminal court."
The ICC has its roots in the end of World War I in which the
world community sought to establish a world court.235 Moreover,
the phenomenon of interconnected state obligations and duties
that gave rise to the moral impetus of international law, and by
extension the ICC, was the moral force of human rights. 36 Driven
by the desire to punish World War II war criminals, international
law took shape in the modern era and by the late 1980s it grew
exponentially with the growth of global capital, and ultimately the
rise of new institutions of social organizing-that of NGOs"'
In tracing the shift in NGO participation in order to clarify
shifts in sovereignty that gave rise to an international court, the
human rights literature of the current period has tended to trace a
genealogy that describes the nineteenth century as a period in
which the interference of one state in the affairs of other states to
enforce obedience to a governing authority was a moral question
neither intended to develop into an alliance of states against others
232. Louis HENKIN, INTERNATIONAL LAW: POLITICS, VALUES AND FUNCTIONS IV
208 (1989), reprintedin HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN
RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 127 (Oxford Univ. Press, 2d ed., 2000).
233. Id. at 208.
234.
See SCHABAS, supra note 34, at 1-2. Indeed, while in force in the twenty-first
century, the creation of the ICC "is not a new or novel idea." Gurule, supra note 36, at 2.
235.
See SCHABAS, supra note 34, at 2-3.
236. See HENKIN, supra note 232, at 278.
237. See id. at 278-79.
326
Loy. L.A. Int'l & Comp. L Rev.
[Vol. 28:279
nor to usurp the power of state sovereignty. 8 As the narrative
goes, the system of territorial sovereignty which emerged with the
European Enlightenment and shifted after the French and the
American revolutions had previously been seen as being in the
domain of the monarch and shifted to a political power of the
people to a given territory. 39 The state was the primary field of
governance and the protection of its sovereignty was seen as
central." ° The legitimacy of nineteenth century states and their
actors depended on the loyalty of this territorially bounded group
to their people, to their markets, and to their nation.241 And these
efforts had their roots in a nationalism based on common ancestry
or culture that involved political movements to unite people to a
sovereign state.
By fostering a sense of national belonging there developed
conceptualizations of individual placement in relation to national
territory and a mythical heritage that would be codified by the
twentieth century instruments of the modern state. However, what
developed were regimes of multiple tiered nation-states,
differently connected to colonies and territories in which explicit
national laws designated the limits of what could take place within
state boundaries. In independent states, these laws were fueled by
legal norms for democratic governance on behalf of the rights of
the state. In colonial states, the laws of the imperial powers and
principles of humanitarian law often prevailed.
What developed was a regime of state rules in which there
were limits to what could take place within state boundaries. This
understanding was fueled by notions of civility and particular
norms and standards which would provide a legal framework for
democratic governance, humanitarian norms, and punishment
systems on behalf of the right of the state.242
Approaches to the belief in the global nature of international
standards are often seen as having their roots in the tradition of
liberal idealist thought from which the League of Nations was
established in 1920.243 Though the League of Nations may have
238.
239.
240.
241.
242.
243.
See HENKIN, supra note 232, at 127-30.
See id. at 127-30.
See id.
See id.
See id.
See earlier discussion of League of Nations supra, at 26-27.
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Internationalizingthe Statecraft
"failed" in practice,2" its moral underpinnings survived to buttress
the theoretical framework of the liberal institution, which is now
2 Liberal universalism has proved very
the United Nations. 45
attractive, historically, as on the surface the language of
liberalism-such as its assumptions about individualism and
liberty-has - ubiquitously become the starting point for any
discussion on human rights, democratic practice, state security and
interdependence. It has cornered the general world conception of
what it means to be a "civilized" society engaged with other
''civilized" states on the world stage.
In tracing the formation of human rights regimes, human
rights advocates use discourses often describing World War II as
the event that accelerated the process of sovereign autonomy. By
the end of the war, various forms of national and ideological
alliances came to constitute a system constrained by sovereignty.
Compared to the period prior to the twentieth century,
international law took a different turn in which questions of
international concern became more central. Indeed, the United
Nations was an institution established to "discuss questions of
international concern, with institutional continuity, and
a
2
constitutional framework of agreed purposes and principles." 1
At the time of UN formation, only fifty countries signed the
charter and the infrastructure for the development of modern
international institutions took shape. 7 With the UN set up with
five permanent members of the security council having veto power
and states still under colonial rule, it was the General Assembly
that became the organ for the public expressions of common
interests and the diplomatic "will" of the international
community.' For example, the General Assembly considered the
most fundamental principles of law-that there can be no
244. The failure of the League of Nations set precedence for the gap between universal
moral pursuits of liberalism and the ability to follow through domestically as well as on a
global scale. Exemplary of this is the United States' refusal to sign the covenant as well as
its policies of racial segregation which dominated its domestic policy well into the late
sixties. See generally SHAW, supra note 108, at 24-31 (describing the failures of the League
and lack of U.S. participation).
245. See SCHLESINGER, supra note 193, at 25-28; SHAW, supra note 108, at 30; History
of the League of Nations, supra note 193.
246. OSCAR S. SCHAcTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 85
(1991), reprinted in HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN
RIGHTS IN CONTEXT: LAW, POLITICS, MORALS, at 226 (Oxford Univ. Press, 2d ed., 2000).
247. See LOUIS HENKIN, HUMAN RIGHTS 286 (1999).
248. SCHACTER, supra note 246, at 226.
Loy. L.A. Int'l & Comp. L Rev.
[Vol. 28:279
punishment of crime without a pre-existing law (nullum crimen
sine lege, nulla poena sine lege)- in order to reconsider the
authority
of the newly formed UN to punish German acts ex post
2 49
facto.
As the explanation of the formation of modern transnational
justice goes, proponents of the ICC argue that in keeping with the
Nuremberg Principles of the Hague Charter-whose goals were
not founded simply on state preservation-the contemporary
institutionalization of an international system has become
increasingly interconnected. Here it is believed that state actions
and rules of enforcement are becoming just as central to the
protection of the interests of other states as they are to the
protection of the state in question. This move toward discourses of
the interconnected humanity of humans, facilitated by the creation
of regional and international institutions and treaty-imposed
obligations on world citizens, is erecting limits on sovereign
autonomy." °
With the establishment of new norms in the international
arena, the United Nations declaration of 1948 established rights of
the human."l Here, ideas of rights were deepened with the
development of second generation rights such as "economic, social
249. Id.; see also Judgment of Nuremberg Tribunal, International Military Tribunal,
Nuremberg, 41 AM. J. INT. L. 172 (1947), reprinted in HENRY J. STEINER & PHILIP
ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 116
(Oxford Univ. Press, 2d ed., 2000). In a unanimous vote, they argued that international
law is established not only by treaties, but also in the customs and practices of states that
gradually obtained universal recognition, and from the general principles of justice applied
by jurists and practiced by military court. Id. at 117. It was felt that the principle of no
punishment without pre-existing law was not a limitation of sovereignty but a principle of
justice. The circumstances of aggression committed by agents of Nazi German against
Jews and various people of neighboring counties were deemed to be punishable ex post
facto (as abhorrent that that may be to civilized nations) and the perpetrators should have
known that his/her actions were wrong. Therefore, it would be unjust for such actions to
go unpunished. Id. at 116. Ultimately, the formation of the Nuremburg Tribunal under the
rules of the Hague Convention established that "individuals have international duties that
transcend the national obligations of obedience imposed by the individual state." Id. at
117. Here, the development of War Crimes and Crimes Against Humanity were
normalized as international criminal categories because they were seen as in humane acts,
regardless of their motivation, committed in execution of an aggressive war. See id. at 118.
This issue of motivation-intent-will be revisited later.
250. See SHAW, supra note 108, at 574-76 (noting international human rights
regulations and institutions like the United Nations have limited the sovereignty of states).
251. See Universal Declaration of Human Rights, preamble, G.A. Res. 217A, at 71,
U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc A/810 (Dec. 12, 1948).
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Internationalizingthe Statecraft
and cultural rights.,
25 2
329
These first and second generation rights
2 And as such, it
were represented as possessed by individuals.53
established a treaty for the recognition of the "inherent dignity
and the equal and inalienable rights of all members of the human
family" and stipulated that "disregard and contempt for human
rights have resulted in barbarous acts which have outraged the
conscience of mankind."25 ' It reported that "the advent of a world
in which human beings shall enjoy freedom of speech and belief
and freedom from fear and want has been proclaimed as the
highest aspiration of the common people" and established that if
"man is not to be compelled to have recourse, as a last resort, to
rebellion against tyranny and oppression, that human rights should
be protected by the rule of law., 255 Yet, the perceived universality
of definitions of the "human" is only an indicator of the force of
Euro-American and Byzantine influence in the ideological
principles of human sacredness. While determining the substance
of rights and the distinctions between humans and citizens
continued to progress, so did the debates for determining the index
for measuring humanity.
Following the UN declaration, three regional initiatives
established similar and competing principles. By the Cold War
period, national self-determination movements led to increasing
independence struggles and new states, while formerly colonial
territories of European powers, came into being. Despite new state
aspirations of sovereignty, these claims became increasingly
limited. What was once the traditional right of the state and its
people was recast in relation to the development of an
international security regime.256
In 1950, the (European) Convention for the Protection of
Human Rights and Fundamental Freedoms was established.257
Following the Cold War, the United States emerged as a major
252. Universal Declaration of Human Rights, art. 22, G.A. Res. 217A, at 71, U.N.
GAOR, 3d Sess., 1st plen. mtg., U.N. Doc A/810 (Dec. 12, 1948).
253. See HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN
CONTEXT: LAW, POLITICS, MORALS 143-44 (Oxford Univ. Press, 2d ed., 2000); Brown,
supra note 227, at 691-92.
254. Universal Declaration of Human Rights, preamble, G.A. Res. 217A, at 71, U.N.
GAOR, 3d Sess., 1st plen. mtg., U.N. Doc A/810 (Dec. 12,1948).
255. Id.
256. See SHAW, supra note 108, at 225-31.
257. European Convention for the Protection of Human Rights and Fundamental
Freedoms, signed Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Human Rights
Convention]. See also STEINER & ALSTON, supra note 253, at 780.
Loy. L.A. Int'l & Comp. L Rev.
[Vol. 28:279
power and rights-driven democratization agendas in post-colonial
states in places such as African and Latin American countries
eventually led to an emphasis on the Rule of Law (ROL). As is
often incorporated in such ICC-human rights discourses, the
claims to sovereignty of third world despots became increasingly
limited. "What was once the traditional right of the state and its
people to govern its affairs without regard, approval, and
consideration of other states, has become one of interconnection"25 8
said one of the advocates of universal jurisdiction of the ICC.
However, despite such popular discourses of transformation,
conceptions of state sovereignty were more theoretical than they
were practical since states have always balanced the practical
challenges of maintaining and negotiating power relations in the
international sphere.
In 1969 came the American Convention on Human Rights.259
This was followed by the 1981 African Charter on Human and
People's Rights. 2'
The European Convention established that
"[e]veryone's right to life shall be protected by law" and "[n]o one
shall be deprived of his life intentionally save in the execution of a
sentence of a court following his conviction of a crime for which
this penalty is provided by law."26'
The American Convention outlines that the "essential rights
of man are not derived from one's being a national of a certain
state, but are based upon attributes of the human personality, and
that they therefore justify international protection in the form of a
convention reinforcing or complementing the protection provided
by the domestic law of the American states.2
1
6
In accordance with
the UDHR, it establishes the "ideal of free men enjoying freedom
from fear and want can be achieved only if conditions are created
whereby everyone may enjoy his economic, social, and cultural
rights, as well as his civil and political rights." 63
258. Research by Kamari Maxine Clarke (on file with author).
259. American Convention on Human Rights, signed Nov. 22, 1969, O.A.S.T.S. No. 36,
O.A.S. Off. Rec. OEA/Ser.L/V/11.23, doc.21, rev.6, reprinted in 9 I.L.M. 673 (1970),
available at http://www.oas.org/juridico/english/Treaties/b-32.htm [hereinafter American
Convention].
260. African Charter on Human and Peoples' Rights, adopted June 27, 1981, O.A.U.
Doc. CAB/LEG/67/3 rev. 5, reprintedin 21 I.L.M. 58 (1982), availableat http://www.africaunion.org/rootlau/DocumentslTreaties/Text/Banjul%20Charter.pdf.
261. European Human Rights Convention, supra note 257, art. 2.
262. American Convention, preamble, Nov. 22, 1969, O.A.S.T.S. No. 36, available at
http://www.oas.org/juridico/english/Treaties/b-32.htm.
263. Id.
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Internationalizingthe Statecraft
By the 1980s, charting the changing logics of governance,
sovereignty, and the language of "human rights" became popular
among those interested in local-global transformations. The study
of international relations became more institutionalized and
involved explorations of the changing place of sovereignty in
studies of inter-state relations. Conceptualizations of national
policy and their connections with local life took shape in the realm
of political science and early studies of international customary
and treaty law. The discipline of political science involved
explorations of the connections between domestic politics and
international affairs. Schools of management and business
developed the areas of transnational business, legal scholars
interested in thinking beyond doctrinal applications of law
developed the study of law and society, and by the 1990s,
sociologists and anthropologists began exploring the modernity of
the state, globalization, and the relationship between the local and
the global.
Borrowing from the 1981 Charter of the Organization of
African Unity 2 -which outlines that "freedom, equality, justice
and dignity are essential objectives for the achievement of the
legitimate aspirations of the African peoples" 265 -the further
expansion of rights with the development of third generation rights
(the rights of "peoples"") led to the passing of the African
Charter on Human and Peoples' Rights.267 Popularly referred to as
the "Banjul Charter," the establishment of an African charter led
to the development of a collective dimension of rights. In Article
21(1), the Banjul Charter outlines that peoples have the right to
"freely dispose of their wealth and natural resources" 268; in Article
29(2) and (7), the individual has a duty to "serve his natural
264. Charter of the Organization of African Unity, adopted May 25, 1963, 47 U.N.T.S.
39,
reprinted
in
2
L.L.M.
766
(1963),
available
at
http://www.sahistory.org.za/pages/specialprojects/african-union/charter.htm
265. African Charter, preamble, adopted June 27, 1981, O.A.U. Doc. CAB/LEG/67/3
rev. 5, reprinted in 21 1.L.M. 58 (1982) quoting Charter of the Organization of African
Unity, adopted May 25, 1963, 47 U.N.T.S. 39, reprinted in 2 I.L.M. 766 (1963).
266. Brown, supra note 227, at 691-92.
267. African Charter on Human and Peoples' Rights, adopted June 27, 1981, O.A.U.
Doc. CAB/LEG/67/3 rev. 5, reprintedin 21 I.L.M. 58 (1982), available at http://www.africaunion.orglroot/au/Documents/Treaties/TextBanjul%20Charter.pdf [hereinafter African
Charter]. See generally DOCUMENTS OF THE AFRICAN COMMISSION ON HUMAN AND
PEOPLES' RIGHTS (Rachel Murray & Malcolm Evans eds., 2001) (providing a useful
collection of commission documents and activity reports).
268. African Charter, supra note 267, at art. 21(1).
Loy. L.A. Int'l & Comp. L Rev.
[Vol. 28:279
community by placing his physical and intellectual abilities at its
service" as well as to "preserve and strengthen positive African
cultural values in his relations with other members of the
society., 269 All of these aspects of human rights, their levels of
priority and possible incompatibilities, and the principles that
underlie them beg for further discussion regarding the basic moral
and ideological values that authorize their legal power.
The African Charter on Human and People's Rights outlines
that not only should "fundamental human rights" which stem from
"the attributes of human beings" and "justifies their national and
international protection" but, "the reality and respect of peoples
rights should necessarily guarantee human rights." 70 Here, it states
in the preamble, "taking into consideration the virtues of their
historical tradition and the values of African civilization which
should inspire and characterize their reflection on the concept of
human and peoples' rights.
27
'1 To further clarify the extension of
"humans" to "peoples" it highlights the need to recognize the
mission of achieving "total liberation of Africa, the peoples of
which are still struggling for their dignity and genuine
independence, and undertaking to eliminate colonialism, neocolonialism, apartheid, zionism and to dismantle aggressive foreign
military bases and all forms of discrimination, particularly those
based on race, ethnic group, color, sex, language, religion or
political opinions." 7 ' Promoting and protecting human and
peoples' rights and freedoms involved "taking into account the
importance traditionally attached to these rights and freedoms in
273
Africa.
These principles of human rights emerged after World War II,
and established a conception of individual sacredness as a secular
principle. The end of the Cold War led to the beginning of a new
consensus whose secularist rhetoric shaped the nature of liberal
democracies and their related norms concerning the rights of the
human and the authority of the state. This pronouncement that
human beings are sacred and have a fundamental obligation to the
state and the state a duty to its citizens reflects, as Michael Perry
269.
270.
271.
272.
273.
274.
African Charter, supra note 267, at arts. 29(2), 29(7).
African Charter, supra note 267, at preamble.
Id.
Id.
Id.
See Schwab & Pollis,supra note 30, at 209-13.
20061
Internationalizingthe Statecraft
has argued, an "intellectual affirmation" rather than a "truly
existential one," but is nevertheless reflective of the deeply JudeoChristian roots of the human rights tradition. 275 Thus,
understanding the establishment of human rights norms in the
twenty-first century as new constructions of the individual and
linkages to both national and international institutions involves
understanding the formation of the religious compromise in the
West, as religious governance became secular governance.
275.
MICHAEL J. PERRY, THE IDEA OF HUMAN RIGHTS: FOUR INQUIRIES 12 (1998).